existing state governments were fully competent, but that when it came to the establishment of a Constitution, the creation of a new political sovereignty,—a legitimate basis could only be found in the popular sovereignty upon which all political authority was believed ultimately to rest. In the Constitutional Convention, on July 23, Madison said that "he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution." Rufus King declared. a popular ratification to be the surest way of dispelling "all doubts and disputes concerning the legitimacy of the new constitution." In other words, it was argued, that if this popular ratification were obtained, the fact that the new Constitution was to rest upon the assent of a less number of States than that provided for by the existing Articles of Confederation, would not be material, for the original source of all political legitimacy would have been appealed to and its approval obtained. As Marshall said in McCulloch v. Maryland, "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." This, then, being the generally accepted theory of that time, the fact that such a popular foundation

was sought, and generally conceded to be necessary, for the new Constitution, is in itself almost conclusive proof that a sovereign National State was intended to be created.

In further verification, however, of the fact of an intended nationality is the negative circumstance that nowhere in the debates in the Federal Convention, nor in the state-ratifying conventions, nor in the pamphlets which were put forth on both sides upon the question of ratification, did there occur a single assertion of the right of secession.1 On the other hand, the opponents of the proposed Constitution attacked it as providing for the destruction of the individual States, and for the creation of a consolidated government; and men like George Mason, Richard Henry Lee, and Patrick Henry predicted the dire oppression of the Commonwealths by the federal power. George Mason in the Virginia Convention declared: "This paper [the Constitution] will be the great

1 In its ratification of the constitution, Virginia declared: "Do, in the name and in the behalf of the people of Virginia, declare and make known, that the powers granted under the constitution, being derived from the people of the United States, may be assumed by them whensoever the same shall be perverted to their injury or oppression." New York in her ratification declared: "That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness." Rhode Island declared: "That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness." Some writers, e. g., Tucker, "Const. Law,” p. 339, interpret these declarations as reservations of a legal right of secession from the Union. As a fact, however, it is clearly demonstrable that they were intended simply as declarations of the moral right of revolution in cases of oppression.

charter of America; it will be paramount to everything. After having once consented to it we cannot recede from it." Richard Henry Lee, in his letters written over the signature "The Federalist Farmer, asserted: "It is to be observed that when the people shall adopt the proposed Constitution it will be their last and supreme act. It will be accepted not by the people of New Hampshire, Massachusetts, etc., but by the people of the United States; and wherever this Constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away." Surely it is reasonable to believe that, had it been generally held that under the proposed Constitution a legal right of withdrawal was still left the States, this belief would have been declared in answer to such emphatic utterances as these.

Not only, however, were there no assertions at this time of a right of secession, but there were specific declarations to the contrary. A conspicuous instance of this was in Madison's reply to the query of Hamilton as to the propriety of "propositions of amendments upon condition that if they are not adopted within a limited time, the States shall be at liberty to withdraw from the Union:" Madison's reply was: "My opinion is that a reservation of a right to withdraw, if amendments be not decided on under the form of the Constitution within a reasonable time, is a conditional ratification; that it does not make New York a member of the new Union, and consequently that she could not be received on that plan. Compacts

must be reciprocal-this principle could not in such a case be preserved. The Constitution requires an adoption in toto and forever. 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 of Madison's was read to the New York convention, whereupon that convention ratified the Constitution unconditionally. The contents of this letter of course became also well known to the people of the other States, and, so far as we know, gave rise to no protests, such as surely would have arisen had the doctrines that it declared been contrary to those generally held.1

In connection with the assertion that it was generally agreed, both by the supporters and opponents of the new Constitution, that a National State was to be brought into being, we must also remember that, as appears by overwhelming evidence, the men of those times were practically unanimously of the opinion that it was perfectly possible to create a genuine National State that would, within its own limited sphere, be absolutely and truly sovereign; and, at the

1 The significant fact is to be noticed that in this very letter which contains this emphatic denial of this reserved right of withdrawal in the State, is employed a phraseology that clearly indicates the presence in Madison's mind of the idea that the States are to be the ratifying parties to the new instrument of government. If the adoption be conditional New York will not become "a member of the new Union;" "Compacts must be reciprocal;" "It has been so adopted by the other States," are the phrases used.

same time, to preserve the several member States as true States which would be, within their respective spheres, equally sovereign and independent. In other words, to the theorists of 1789 there seemed no difficulty whatever in a divided sovereignty, and therefore, in the existence of a sovereign National State composed of constituent sovereign States.1

We must believe that it did not wholly escape the constitutional fathers that, ultimately, there must be some single source of the political authority both of the National State and of its member States. They deemed, however, this logical necessity satisfied by asserting in general terms that all right to political rule is derived from the people, without clearly stating whether by the people they meant the citizen bodies of the thirteen States, severally considered, or the whole American populus conceived as a single body politic. Thus, instead of giving any real answer to the question as to the final location of sovereignty in America, they merely pushed the problem one step further back and there left it as undetermined as before. This, however, was not a conscious, deliberate evasion of the difficulty as Small and Walker would have us believe. It was a clear self-deception,—a selfdeception from which Americans were very slowly released, for even after serious conflicts had arisen between the Federal Government and the individual Commonwealths, and the former had clearly demonstrated its paramountcy, both nationalists and particularists long continued to speak of a division of 1 For the evidence as to the generalness with which this view was held, see Merriam's "History of American Theories,” Chap. VII.