and of the Commonwealths, and in which the decisions were adverse to the federal power. This one act, together with its acceptance by the people and by the Supreme Court, was, it seems to us, almost decisive of what was henceforth to be the character of the United States government. Thus was claimed and exercised by the central power the right of determining, in the last instance, the construction of its instrument of government. It is no wonder that Calhoun and his school so strongly inveighed against the propriety and constitutionality of this section.

This appellate power as exercised by the United States Supreme Court determined conclusively that there remained in the several Commonwealths no legal power of refusing obedience to, or in any way nullifying the effect of, a federal law that has been decided to be constitutional by the federal tribunal; nor right of enforcing laws of their own that have been declared by the same tribunal to be in excess of their legislative competence. The claim was still made, however, by the States' Rights party. a claim that in 1861 they attempted to put into actual operation, - that the individual members of the Union had the right to withdraw from the Union, without the consent of the rest, in case they felt their interests too greatly prejudiced by longer remaining in the Union. The outcome of the Civil War finally decided that it was the dominant will of the People that the constitution was to be so construed as to render this claim of right of secession unwarranted; and, as said, post bellum decisions of the Supreme Court have repeat

edly held that the Southern Commonwealths never were out of the Union and never legally could be.

These facts determine the present federal character of our Union. In the process of constitutional amendment, the several Commonwealths cannot be considered, therefore, as playing more than formal parts as agents of the National State. This reasoning does not, of course, attempt to fix the exact date of the birth of the National State, and in fact, as has been previously shown, it is impossible to determine historically the exact moment of creation of any State, Composite or Unitary.

Granting that it was intended to create a Confederacy in 1789, the fact is 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 words. The People were thus enabled, through Congress and the Supreme Court, gradually to satisfy their feelings of political unity without a resort to those open revolutionary means which would have been necessary had the constitution been more definitely worded. If we grant, however, that a correct legal interpretation of the constitution would determine that not only was a Confederacy originally intended, but actually provided for; then, however peaceably and gradually the change to a Federal State was effected, a change that was not disclosed until the crisis of civil war,such a change must necessarily be considered revolutionary in character, and, in contradiction to this, it would not do to point to the manner in which this

T

transition has been clothed in apparent legal form. If, on the other hand, it be said that a Federal Union existed from the beginning, there is of course no difficulty in maintaining its continued existence.

Argument such as the above is in complete consonance with the principles laid down in this treatise, and renders useless for our purposes any further consideration of the character of the historical steps that led to the adoption of our instrument of union in 1789. Sovereignty is an attribute that has to be proved, not as a matter of law, but of fact, but not as such a fact as may be demonstrated by the historical evidence ordinarily adduced to explain the character of the constituent act of 1789. Sovereignty expresses the supreme will of a People, and this will is exhibited in outward political acts. But all acts, even though supported by the entire force of a community, and based upon its desires, are not necessarily expressions of the sovereign political will. Though Sovereignty may not itself be proved as a matter of law, the existence of legitimate organs and legitimate powers for the expression of its will must be so demonstrated. Acts, if they would be considered as of the State, must be performed in accordance with the formal provisions of law, constitutional or ordinary. In other words Sovereignty is not to be identified with popular will, nor the power of the State with mere force. This point we hope to make plain in the next chapter. Thus when Hurd maintains,1 that the original thirteen

1 The Union State.

colonies never were severally sovereign after their separation from England, and before their union in 1789, for the reason that each of them severally lacked the power to maintain an autonomous existence, he is confusing the two conceptions of Sovereignty as a legal power, and force, as a mere physical fact. Even his assertion that contemporary records show the existence of a sentiment of national unity, and a general desire for concert in action, does not help the thesis. For, whatever this will may have been, unless there were provided organs through which its commands might be legally expressed, a sovereign national power can not be alleged to have been established.

CHAPTER XI

LOCATION OF SOVEREIGNTY IN THE BODY POLITIC

Historical Retrospect. -Since very early times there has been constantly present in political life, the question of the extent to which the people at large should select their own rulers and determine the manner in which their public affairs should be administered. In a very general, and, as we shall see, incorrect manner, this problem has been treated as one concerning the location of Sovereignty in the body politic.

We may say that the first recognition of the right of citizens to a sphere of activity in which they should be protected from arbitrary interference on the part of Government is to be found in Roman Law. Though it is true that the Romans adopted the principle that quidquid principi placuit legis habet vigorem, yet it is to be remembered that they postulated that the original source of such political power is in the People, and that the powers of the governing are derived from a grant by them. This grant, however, they held to be an alienation and not a revocable delegation.

In our sketch of the history of the contract theory we have seen the direction taken by political theory in connection with the long-continued dispute