sovereignty between federal and state governments. It was not, indeed, until the time of the CalhounHayne-Webster debate that the indivisibility of sovereignty was definitely put forward. Even this, however, did not put an end to the theory. It continued to figure in our political thought until the outbreak of the Civil War, when it received its last unfortunate application at the hands of Buchanan when he asserted that, though the individual States had not the legal right of secession, the National Government had not the constitutional power to prevent them from doing so.

By adopting the explanation which we have just given of the motives and intentions of those who framed and adopted our Constitution, we seem to be thrown into the peculiar position of maintaining that the people desired and thought that they were obtaining a result that we now know to have been a logical impossibility-namely, the creation of a legally indissoluble Union by an agreement between sovereign States-one in which not simply the exercise of sovereignty but the power itself should be divided between the National State and its member Commonwealths. What then, as a matter of fact, are we to say was the nature of the actual product? If this was simply a question as to which should determine, the intention, or the means employed, we should not hesitate to say that the intention should be controlling. If that animus was there, upon which is based the true origin of a State, then, by whatever means this subjective condition obtained objective manifestation, we should be justified in declaring

that a National State was created; and in asserting that, though the people thought themselves to be acting as States, yet, in truth, the fact that they were seeking the establishment of a political power which was to destroy the existence of those States as sovereign bodies, necessarily produced the result that the participation of the States in the establishment of the new government was no more than a formal one, and that, in reality, their governmental organs were used by a single People for the performance of a truly National act. But the difficulty is, as we have already learned, that though the people intended to create, and thought that they were creating a National State, they also believed that they were not sacrificing the sovereignty of their several Commonwealths.

These, then, being the facts, and remembering that the creating cause of a State is that there exists in a community a "General Will" demanding political unity, it plainly appears that the answer to the question whether or not there was created, or rather existed, in 1789 a single sovereign People, turns upon ⚫the point whether at that time there was a stronger desire for national unity than for the continued sovereignty of the several States. In other words, the question is: If the fact had been clearly presented to the people that sovereignty cannot be divided, and that, therefore, they must choose between National Sovereignty and absolute State Sovereignty, which would they then have selected? To such a hypothetical question there cannot of course be given an absolutely certain reply. We think, however, that the preponderating opinion of historians of all schools,

nationalistic and particularistic, is that had this alternative been thus sharply outlined in 1789, the proposed Constitution would have failed of ratification by a sufficient number of States to enable it to go into operation. For, as. it was, it was only with the greatest difficulty that its adoption was secured. This being so, we are, as a consequence, almost forced to say that the adoption of the Constitution and the establishment of a government according to its provisions was not a demonstration of the fact that a truly sovereign, national State had come into being.

At first thought this seems to be a very important admission,-one that goes very far toward supporting the claims of the States' Rights School as made from time to time during our history since 1789. But let us see to what extent this is the necessary result. Recurring to our analysis of the nature of sovereignty, we remember that, though we say that the force that creates a State, and therefore its sovereignty, is the General Will of a People demanding political unity, the State itself cannot be said really to exist until this will has become objectively manifested, that is, has found expression in the creation of some sort of governmental organization through which its desires may be satisfied. So also, reasoning in the other direction, we say that so soon as a People ceases to yield general obedience to the commands of a given political organization, and thus in deed and fact no longer recognizes its sovereignty, and, indeed, renders obedience to the laws of another political power, the old sovereignty is destroyed and a new one has taken its place. In such a case, however peaceably and gradually the transition may have been effected, the change must be

held to have been illegal and revolutionary in character when looked at from the standpoint of the old State; for there is no legal means by which the sovereignty of one or several bodies politic may be transferred to a new political entity. In fine, sovereignty, though itself the source of all law, is not itself founded upon law. It is based wholly upon fact, and its existence has to be demonstrated as such. Bearing in mind, then, this fact, and granting that the Constitution at the time of its adoption, created, and was intended to create, a Confederacy, it may properly be argued that there soon came into being a national feeling which created a national sovereignty that was objectively realized both in explicit declaration and in fact.) Adopting this reasoning it may be said that the circumstance that the Constitution was so indefinitely worded that it could be interpreted as creating a National State, without doing too much violence to the meaning of its terms, enabled the people, through Congress and the Supreme Court, to satisfy their desire for political unity without a resort to open revolutionary means. Still, it must be conceded by those who take this view, that however peaceably and gradually the transformation to a Federal State was effected, the change was necessarily revolutionary in character. It does not help them to point to the manner in which its steps were clothed in apparent legal form. In our next chapter, then, we shall consider some of the events following the inauguration of the new government which tend to demonstrate that, however confederate in character the Union may have been at the time of its creation, a National Federal State soon came into being.

CHAPTER III

THE DEVELOPMENT OF NATIONAL SOVEREIGNTY

WE are warranted in assuming that, from the very beginning of the new régime, the great improvement both in political and commercial conditions must have tended to impress the people generally with the advantages of an effective central government. Such measures of national legislation as the Impost and Navigation Acts, the reenactment of the Northwest Ordinance, the assumption of state debts, the establishment of a National Bank, all adopted within a few years after the establishment of the new central authority, operated greatly to increase the actual influence and power of the Federal Government. Incidents such as the successful suppression of the socalled "Whisky Rebellion" in Pennsylvania must also have had a considerable weight in the same direction. None of these exercises of the federal power, however, with the possible exception of the last, influential though they may have been to evoke the sentiment that was needed to create and maintain a national State, involved any explicit assumption of a federal authority necessarily inconsistent with the continued existence of the sovereignty of the individual States.