argued, the decisive reason why this mode of ratification was decided upon was because of the general conviction that though the existing governments of the States might be constitutionally competent to create a league or confederation of the respective States which they represented, only the citizen bodies of those States, acting in their original sovereign capacities could, as a matter of inherent political right, create a genuine National State; for, according to then prevailing political thought, this sovereignty, which the peoples of the States were conceived to possess as an original right, could be exercised by them only directly, or through conventions specially assembled for the express purpose.

In the Constitutional Convention of 1789 Madison said that "he considered the difference between a system founded on the legislature only, and one founded on the people, to be the true difference between a league or treaty, and a constitution." Rufus King declared that a proper ratification was the surest way of dispelling "all doubts and disputes concerning the legitimacy of the new Constitution."12 As Chief Justice Marshall later said in his opinion in the case of McCulloch v. Maryland,13 "To the formation of a league such as was the Confederacy, the State sovereignties were clearly competent. But when, in order to form a more perfect union "it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all."

Secession. Whether or not the view was held at the

"The Articles of the Existing Confederation provided that they might be amended only by a unanimous vote of the States. The proposed new Constitution provided that it should go into effect when ratified by nine States, as between the States so ratifying.

13 4 Wheaton 316.

time of the adoption of the Constitution that the States, having once entered the Union, would be legally able to escape from it by secession, will always remain a matter for discussion. It is, however, worthy of remark that there is no record that such a right was explicitly declared, although several of the States, in their resolutions of ratification, did assume a moral and revolutionary right upon their part to reassume the powers they were parting with should they be used by the National Government to injure or oppress the governed. Furthermore, there are recorded statements in which a legal right of secession upon the part of the States was expressed and explicitly denied. A conspicuous instance of this was in the reply which Madison made to the inquiry of Hamilton as to the propriety of giving to the States, for a limited time, the right to withdraw from the Union should certain suggested amendments to the Constitution as drafted by the Convention be not adopted. Madison said: "The Constitution requires an adoption in toto and for ever. It has been so adopted by the other States. An adoption for a limited time would be as ineffective as an adoption of some of the articles only; in short, any condition whatever must vitiate the ratification." This letter was read to the New York Convention prior to its ratification of the Constitution, and its contents were well known to the peoples of the other States who, so far as is known, did not deny the doctrine it declared.

A Divided Sovereignty Intended. One further fact regarding this theory as to the nature of the constitutive act of 1789 is to be observed. Though the people of that time almost indubitably intended to create, and believed that they were creating, a true National State, it is reasonably certain that they thought that they were establishing a political entity that would not possess supreme or sovereign authority over all possible matters of legal

regulation. The doctrines that sovereignty necessarily denotes unlimited legal competence, and that it is a quality or power not susceptible of division, were not then held. Instead, there is abundant evidence that, influenced by the theories of Locke, the American people believed that individuals, when creating a State by their common agreement, might exempt certain interests from its sphere of legitimate legal control, with the result that the regulation of these interests were to be regarded as reserved to the individual citizens. Thus, when the thirteen States were conceived of as creating, by their joint agreement, a National State, it was but natural that they would deem it possible to exempt from national control the exercise of certain legal rights of regulation, and to reserve these powers to the compacting States or to their respective citizen bodies. Thus, in the ninth and tenth Articles of Amendment to the Constitution which, at the time of the adoption it was understood would be added to that instrument, it was provided that the enumeration of certain rights in the Constitution was not to be construed to deny or disparage others retained by the people, and that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It was this reasoning which, as we shall presently see, made possible the holding of a theory of divided sovereignty which, after the adoption of the Constitution, played such a conspicuous and detrimental part in the constitutional history of the United States.

Space will not permit the presentation of all the historical evidence that might be advanced to show that the doctrines which have been described were the ones generally held by the statesmen of the period under discussion. A few illustrative examples may, however, be given.

Pelatish Webster, in his Dissertation on the Political Union and Constitution of the United States, published in 1783, and in which he urged the calling of a convention to frame a new Constitution, declared: "A number of sovereign States uniting into one Commonwealth and appointing a supreme power to manage the affairs of the Union, do necessarily and unavoidably part with and transfer to such supreme power so much of their own sovereignty as is necessary to render the ends of the Union effectual. . . . In like manner, every member of civil society parts with many of his natural rights that he may enjoy the rest in greater security under the protection of society."

James Wilson, in the Constitutional Convention, declared that "Federal Liberty is to the States what civil liberty is to private individuals; and States are not more unwilling to purchase it, by the necessary concession of their political sovereignty, than the savage is to purchase civil liberty by the surrender of the personal sovereignty which he enjoys in a state of nature." 14

Washington, writing to the Congress of the Confederation, said: "It is . . . impracticable in the federal government of these States, to assure all its rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to secure the rest."

" 15

In the very ratification of the Constitution the compact theory was stated by some of the States. Thus Massachusetts, when giving her assent, spoke of the States as entering into an "explicit and solemn compact with each other," by assenting to and "ratifying the new

"Madison Papers, vol. II, p. 824.

"Elliot's Debates, vol. I, p. 305. For reference to other statements showing the application of the social compact theory to the formulation of a federal State, see the scholarly article by Professor McLaughlin in the American Historical Review for April, 1900, entitled "Social Compact and Constitutional Construction."

Constitution." To the same effect spoke New Hampshire,

Conclusion. In result, then, it seems reasonably certain that, so far as the intentions and beliefs of those who framed and adopted the Constitution are concerned, the view was held that a true National State was created, but that it was to be sovereign only as to the powers expressly or by necessary implication granted to it. All other powers were deemed to be reserved by the States or by their peoples.16

Constitutional Fathers Left Indeterminate the Situs of Sovereignty. It is not reasonable to believe that it wholly escaped the thought of the constitutional fathers that, ultimately, there must be, in every civil society, some single final source of political authority. But it would appear that they deemed this logical necessity sufficiently satisfied by the premise that all right to exercise political authority is drawn from the consent of the governed and remains subject to their will. It further appears that they did not foresee the disputes that were later to arise as to whether this ultimate basis of right for the National State was to be found in the general will of the governed conceived of as a single national body, or as grouped into thirteen or more distinct bodiespolitic. Thus both the Union and the State were regarded as agencies for the exercise of sovereignty rather than as possessors of sovereignty. Instead of giving a real answer to the question of the ultimate location of sovereignty in the United States, men of the time merely pushed the problem one step further back and left it still undetermined. Because they did not appreciate this, they did not take the care that they otherwise might have done so to word the Constitution itself, or their acts of

18 As to the general acceptance of this doctrine of divided sovereignty see Merriam, History of American Political Theories, chap. VII.