Articles of Confederation, is, after all, of no great significance, for if it be true that the States were individually sovereign between 1781 and 1789, then, whether they became such in an illegal and usurping manner or not, the fact would still be that, at the time of the adoption of our present Constitution, they were the only bodies politic vested with the sovereign power. The fact, therefore, even if it could rightly be alleged, that there had been a prior sovereignty of the Nation, would have only a moral or argumentative effect in justifying the right of the people to act as a unit in 1789, and as demonstrating that, as a matter of fact, they did do so.

Granting then that the individual States were severally sovereign in 1789, how, if at all, is the national character of our present Constitution to be maintained? The best-known answer to this question is that rendered classic in the speeches of Webster, that, though the States existed in 1789 as thirteen sovereign bodies politic, and though the Constitution was formally ratified by the people acting through conventions convened for that purpose in and by each of such States, yet the act of adopting the Constitution was, after all, not the act of the several States, but of the whole people united into a political unity by that subjective feeling of nationality which is the ultimate foundation of every sovereign State. In other words, this theory is that at this time the National State existed subjectively in the minds of the people and was made objectively manifest in the creation of a National Government; and that existing state organs and political machinery were used merely for convenience

for the realization of that object. This view, it will be seen, differs from the one which holds that the individual States were not at that time sovereign, in that it makes the adoption of the Constitution a revolutionary act as regards the then de facto state governments.

The point to be observed in regard to this theory is, that, as ordinarily argued, it puts the controversy upon a plane where absolute demonstration, either for or against, is rendered impossible. The allegation that, though the people ratified in state conventions, they yet believed themselves to be acting and intended to act as a single national unit, is one which can be proved or disproved only by searching the minds of the people of that time. The question is thus made to turn upon the existence or non-existence of a mental state, a subjective condition purely. Now the only evidence which, in general, has been adduced upon this point is the records which we have of nationalistic and particularistic expressions of the statesmen of the time, together with what other written evidence may be produced to show what the people themselves thought was the character of the constitutive act which they were performing. Had there but been a substantial agreement of opinions at the time, or had the people been skilled in logical and legal distinctions in political philosophy, and gifted with a foresight as to the necessity of rendering the character of their acts perfectly explicit, and, lastly, had their intentions, as finally contained in the instrument of government which was adopted, been so unequivocally stated as to admit of but one construction, then, and only

then, such evidence might possibly be so exhaustively collected as to afford ground for a satisfactory, if not absolutely certain, decision in the matter. But it is scarcely necessary to say that such conditions did not exist. So long, therefore, as the argument is conducted along these lines, both sides are abundantly able to cite facts as well as expressions of opinion favorable to their views, without either of them being ever able conclusively to satisfy either their opponents or the impartial student.

From some sources the view has been advanced that the framers of our Constitution were well aware of the logical dilemma that, in any federal State, the sovereignty when traced to its final source is to be found in its entirety either in the central power or in the constituent States, but that they purposely avoided giving an explicit statement in the instrument which they drafted as to which horn of this dilemma they accepted. This is a view taken by Professor A. W. Small in his essay entitled "The Beginnings of American Nationality," in which he says, "The people of the United States simply dodged the responsibility of formulating their will upon the distinct subject of National sovereignty until the legislation of the sword began in 1861." This is also the view of the late President Francis A. Walker, as expressed in an article entitled "The Growth of American Nationality," published in 1895. In this he writes, "The issue was one which, if not purposely made doubtful, was purposely left doubtful, because any attempt to force the issue at that time would have meant nothing more or less than the

immediate and complete failure of any scheme of Union."

This theory is thus, it will be observed, a frank non possumus, as to whether or not a National State did actually exist or was created in 1789.

Attractive as is this theory in its solution, or rather avoidance, of the difficulties inherent in the analysis of the constituent act of 1789, it is, unfortunately almost, if not quite, unsupported by historical evidence. Surely if the real nature and importance of the distinction between a Confederation of States and a single, absolutely sovereign National State had been clearly perceived by those taking the leading part in the framing of the new federal instrument of government, and if, with this distinction in mind, a conscious, deliberate attempt was made to leave the matter unsettled, some one of them would have avowed it, or at least have made a note of it in his private writings. That there may have been a few prescient minds that saw that there was lacking in the proposed Constitution a decisive answer to the question as to where the ultimate sovereignty in the United States was henceforth to lie, we may admit. But that this

fact was generally recognized by the leaders of the people in the constitutional and state-ratifying conventions, and that there was an agreement between these leaders to remain silent upon this point, is, considering the bitterness of the debates preceding the final ratification of the Constitution, practically inconceivable.

Some more satisfactory answer to this all-important question than the one just considered is, therefore,

needed. lowing:

This more satisfactory answer is the fol

It has been generally held that if it be admitted that the States were sovereign in 1789, and that the people themselves believed the Constitution to be, and intended that it should be, a compact between the States, then a Confederacy must be conceded to have been established, and secession, consequently, a constitutional right. We do not believe that this necessarily follows, and for these reasons. It clearly appears from what we know of the thought of the period that the people generally, as well as the most influential of the public men, regarded the Constitution as a compact between the States. We find it repeatedly so stated by the most earnest advocates of a strong central government, both at the time of the adoption of the Constitution and during the first years which followed its ratification. Thus, to give a single instance, as typical of many, we find Madison in the thirty-ninth number of the "Federalist" declaring that "this assent and ratification is to be given by the people not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, -the authority of the people themselves. The act, therefore, establishing the constitution will not be a national but a federal act." Indeed, the Constitution itself plainly enough says that "the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying