seem that he means that this was true only in a formal and not an essential sense,-only on paper and not in fact, for the real basis upon which the thirteen States founded their several sovereignties he declares to have been destroyed by the existence of this predicated national sovereignty, which, however, had not yet obtained for itself an organ through which it might be expressed and executed.

Turning to the question of the source whence the Constitution derived, and was at the time conceived by the American people to have derived, its force as fundamental law, Professor Burgess declares that the adoption of the Constitution was a purely national act. Furthermore, according to his view, the Constitution derived its validity, not, as its own terms assert, from the ratifications of the necessary number of State conventions, but from the authority of the federal constitutional convention; in other words, that the Convention not only drafted the instrument, but breathed into it its legal life. He writes: "I have endeavored to show that the real organization of the United States as the sovereign, the State, in our present system, was in the constitutional convention. This, like the Continental Congress, was a single body, representing the whole people of the United States and passing its resolves by simple majority. The people of the United States were behind this body, and gave it the power to ignore practically the Confederate Congress and the legislatures of the commonwealths, and, while formally submitting its work to ratification by the immediate representatives of the people in the commonwealths, chosen by the people for that special purpose, to really ordain the Constitution." 8

It is difficult to have patience with such a position, contradicted as it is by the very terms of the instrument * Op. cit., I, p. 143.

itself, by the unambiguous acts of the convention, and unsupported by a single recorded expression of contemporaneous opinion."

Theory That the Adoption of the Constitution Was a National Act. A second group of nationalistic publicists or politicians have said that, even if it be admitted that the States were severally sovereign prior to 1789, and that the Constitution then adopted was a product of their compacting wills, nevertheless, by that act, they created a truly sovereign national State to which they surrendered up their own several sovereignties. The juristic impossibility of such an act we have already seen, and, in fact, after the logic of Calhoun's reasoning had made this plain, the Nationalist School, in general, fell back upon a third theory, which was the one that Webster relied upon in his famous debates in the Senate. This theory was that, though the States existed in 1789 as thirteen severally sovereign bodies politic, and though the Constitution was formally ratified by conventions convened for that purpose in and by each of such States, the act of adopting the Constitution was, in essence, not the act of the several States but of the whole American people united into a single political body by that subjective feeling of, or desire for, political unity which is the ultimate factual foundation of every sovereign State. In other words, this theory asserted that, prior to 1789, a National State existed subjectively in the minds of the people, and was made objectively manifest by the creation of a National Government, and that the existing political machineries of the then thirteen States were used merely as convenient means for realizing this end. This view, it will be seen, admitted that the States were sovereign in 1789 and, therefore, by necessary implication, conceded that, as to them, the establishment of 'Professor Burgess does not attempt to adduce historical evidence in its support.

the new National State was an illegal or revolutionary act.

Regarding this theory the point especially to be observed is that it put the controversy upon a plane where absolute demonstration, either for or against, was rendered impossible. The allegation that, though the Constitution which had been drafted by the Convention of 1787 was ratified by conventions assembled in the several States, the peoples of those States believed themselves to be acting, and intended to act, as a single national body, is an assertion that can be proved or disproved only by determining the state of mind of the participants as evidenced in the historical records that have been preserved. Unfortunately, however, the statesmen of those times were neither skilled in juristic distinctions nor gifted with a foresight that would lead them to render perfectly explicit what they conceived to be the essential character of the constitutional transaction upon which they were engaged. Whatever the reasons may have been, the fact remains that neither the records of what was said at the time, nor the language of the Constitution itself, furnishes conclusive evidence as to what were the beliefs and intentions of the statesmen of the time as to the juristic relation the newly established Union was to bear to the individual States.

Though, from the nature of the case, it is impossible to demonstrate the invalidity of this nationalistic interpretation of the nature of the constitutive act of 1789 in the conclusive manner in which an alleged mathematical or other purely logical proposition may be exposed, it may be pointed out that the burden of proof would seem to rest upon those who assert that the adoption of the Constitution, though in form that of thirteen bodies-politic was, in reality, that of a single national unit. There is, however, no record of a declaration, con

temporaneously made, that the peoples of the thirteen States felt or believed that they were acting otherwise than as distinct bodies-politic. Upon the contrary, there were repeated contemporaneous statements of the view that the Constitution was a compact between the States. In fact, that instrument itself declares that its ratification by conventions of nine States would be sufficient for its establishment as "between the States so ratifying the same." 10 Furthermore, as has been already pointed out, this compact doctrine was explicitly asserted in 1798 and 1799 by the legislatures of the States of Virginia and Kentucky. It is true that the other States of the Union which replied to these Resolutions did not agree with the deductions which the Resolutions drew with regard to the action that the States of the Union might rightfully take with regard to national measures deemed by them unwarranted by the Constitution, but none of those replying States, with the possible exception of Vermont, expressed any dissent from the premise that the Union resulted from a compact between its constituent members.11

A National State Intended. Even if it be accepted that the preponderant historical evidence is in favor of the view that, in 1789, the American people believed that the new Constitution resulted from, and was, in essential character, a compact between the thirteen severally sovereign peoples of the original States, it does not follow that they believed that they were creating only a league or confederacy in which the States were to remain sev

10 Article VII.

"Vermont declared: "the old Confederation, it is true, was formed by the State legislatures, but the present Constitution was derived from a higher authority. The people of the United States formed the federal Constitution, and not the States, or their legislatures." But even this assertion probably meant nothing more than that the new Constitution rested upon the assent of the sovereign peoples of the States and not merely upon the sanctions of the Governments of those States.

erally sovereign, and by which no national sovereignty was to be brought into being. Upon the contrary, there is considerable and perhaps preponderant historical evidence to show that the statesmen of that time intended to establish, and believed that they were establishing, not simply a central governmental organization that was to act as the common agent of the States for the attainment of certain common ends, but a true National State, withdrawal from which by a State would be an illegal act. To be sure, as is now generally agreed by jurists, these two views that the Union was a product of the compacting wills of severally sovereign States, and that a National State was thereby created, were logically inconsistent with each other, but this does not argue against the historical fact that both views were held.

Influence of the Social Compact Theory. It is well known that the political and juristic thought of that time was saturated with, and largely dominated by, doctrines of natural rights, and by the theory that political authority is legitimized by mutual agreements between the governed, or between them and their rulers. If, then, it was generally held that a public will could be created by a union of private wills, and that public rights could be based upon a surrender of rights by individuals originally and severally sovereign, it was but natural and logically consistent that it should also have been believed that a national sovereignty could be created by a mutual agreement between a number of severally sovereign bodies-politic. The reasoning which supported the one view would equally support the other.

There were, this theory admitted, certain practical considerations which made those who favored the adoption of the Constitution provide that it should be ratified by conventions specially assembled in the several States, rather than by the legislatures of those States, but, it was