new Union is partly national and partly federal, one House resting on a national and the other on a federal basis. The executive is also constituted in a mixed federal and national way, since the electoral vote is distributed partly in accordance with the principle of state equality, and partly according to population. Viewing the operation of the government, it is seen to be national and not federal, inasmuch as it acts directly on individuals and not through the states. In the extent of its powers, however, the Union is federal, because its jurisdiction is limited to specific objects, and all else is left to the states. Lastly, as respects the amending power, it is found that the government is partly federal and partly national, since neither the principle of unanimity nor that of proportionality obtains exclusively. It thus appears that the government, as organized in the Constitution, must be regarded neither as a pure confederacy nor yet as a "consolidated republic"; but should really be placed in a class by itself. It is a new type of government peculiar to American conditions—a form at once national and federal, happily combining the characteristics of both.

In harmony with this idea of the mixed character of the Union, was the theory that sovereignty is capable of division and actually is divided in the United States. This doctrine was current at the time when the Constitution was adopted, was generally accepted until the days of Calhoun, and still

remains the theory of the federal courts. In the letter of the Constitutional Convention to Congress, it was expressly declared that "all rights of independent sovereignty" could not be secured to the states under a system of federal government.1 In the Federalist, also, the division of sovereign power was frequently suggested. Thus it was said that the old Confederation attempted to accomplish impossibilities, "to reconcile a partial sovereignty in the Union, with complete sovereignty in the states; to subvert a mathematical axiom by taking away a part, and letting the whole remain."2 It was shown that in Rome "the legislative power in the last resort resided for ages in two different bodies, which were distinct and independent; " 8 that is, the Patricians and the Plebeians. It was asserted that the new Constitution does not reduce the states to the rank of provinces, but leaves them in possession of "certain exclusive and very important portions of sovereign power." The states will still hold "all the rights of sovereignty which were not by that act exclusively delegated to the United States."5 In a consolidated system the local authorities are wholly subject to the central government; but in the proposed Union the "local authorities form distinct and independent portions of the supremacy, no more subject to the general authority than the general authority is to them

1 Journal of Congress, XII, 165. 4 No. 9.

8 No. 32.

2 No. 4.

5 No. 31. Cf. No. 82.

within its own sphere." The states may not be fully sovereign, but they have at least a residuary sovereignty. There are, in fact, many sovereignties existing side by side. The real sovereignty rests, however, not with state or federal government, but with the "people." "The ultimate authority," it is said, "wherever the derivative may be found, resides in the people alone." 2 But who the "people" were, whether of the several states or of all the states taken collectively, the Federalist was careful not to answer. This was a question

left for coming generations.

It is a fair conclusion, then, that at the time when the Constitution was adopted, the prevalent opinion was that in some way or other sovereignty was being divided between the states and the Union.3 It is a mistake to suppose that the states thought they were renouncing all of their sovereignty, or that they thought they were giving up none of it. There were, of course, some who believed in one or the other of these two ideas; but in gen

1 No. 39.

2 Nos. 33, 45, 82.

See John Dickinson, "Letters of Fabius," p. 179; Noah Webster, "An Examination into the Leading Principles of the Federal Constitution," p. 46 (both the foregoing are in Ford's Pamphlets); Elliot, Debates, II, 129, 143, 356. John Adams said (1790): "Our new government is an attempt to divide a sovereignty- a fresh essay at imperium in imperio. It cannot, therefore, be expected to be very stable or very firm." Works, IX, 564. In this connection see a discussion on "Social Compact and Constitutional Construction,” by A. C. McLaughlin, in The American Historical Review (April, 1900).

S

eral it was thought that a compromise was being made between states and Union, and that a division of sovereignty was involved in this. If the question were ever raised as to where the ultimate controlling power in the community is located, the answer was, "with the people," without particular inquiry as to just what was meant by this.1 In the Revolutionary days "people" had stood for the opposition to the king, and this old idea was used to conceal the difficulty involved in a wholly different situation.

This idea of the divisibility of sovereignty was early enunciated by the United States courts, notably in the case of Chisholm v. Georgia (1792). The declaration was made that "the United States are sovereign as to all the powers of government actually surrendered. Each state in the Union is sovereign as to all the powers reserved."2 Succeeding decisions gave expression to the same theory that sovereignty is capable of division and actually has been divided under the American system. The opinions of the courts were permeated with the idea of the division of sovereign powers between the states and the Union.3

1 Cf. James Wilson's argument in the Pennsylvania Convention on this point, Elliot, Debates, II, 504.

8 Cf. Ware v. Hylton, 3 Dallas, 232 (1796): “The several states retained all internal sovereignty and . . . Congress properly possessed the great rights of external sovereignty." Cherokee Nation v. Georgia, 5 Peters, 26: "They have in Europe sovereign and

One of the staunchest champions of the theory of divided sovereignty was James Madison. He maintained that the American government was neither federal nor national; it was sui generis, federo-republican, unique in the nature of its construction, a "nondescript to be tested and explained by itself alone," an illustration of the adaptability of republican institutions to new and difficult conditions. To his mind nothing was clearer than the proposition that sovereignty may be divided. If it cannot, he urged, then "the political system of the United States is a chimera, mocking the vain pretensions of human wisdom." 2 Or again, "It is difficult to argue intelligibly concerning the compound system of government in the United States without admitting the divisibility of sovereignty.' In this case it is necessary "to abandon abstract and technical modes of expounding and designating its character," and regard the Constitution as a "system hitherto without a model." He found that the sovereignty was divided between the states on the one hand and the Union on the other, so that the whole society, as he said, consists in a number of partial sovereignties.5 Moreover, he charged that the main pillar of nullification was

"3

But

See

demi-sovereign states, and states of doubtful sovereignty. this state, if it be a state, must be a grade above them all." McCulloch v. Maryland, 4 Wheaton, 316; Worcester v. Georgia,

6 Peters, 591–592.

2 Ibid. IV, 61.

4 Ibid. IV, 420–421.

5 Ibid. IV, 393.

1 Works, IV, 420–421. 8 Ibid. IV, 394.