must stand as their will, and is equally binding on the General Government and on the States."

With the speeches of Webster and Hayne the "great debate" reached its climax. Foot's resolution remained before the Senate, indeed, for nearly four months, and most of the members spoke upon it; but although the discussion took a wide range, no one contributed anything further to the controversy in which alone the Senate and the country were interested. May 21 the resolution was laid upon the table.1

It will be convenient to consider at this point, once for all, the merits of the constitutional argument which this debate over nullification called forth. In resting his contention, as he did, upon the theory that the federal government was the X result of a compact between the states, Hayne undoubtedly believed that he was stating, not only the true historical theory of the Constitution, but the sound legal and constitutional theory as well. He was, indeed, curiously illogical in making the federal government a party to the compact. Calhoun, in his "Address on the relations which the States and General Government bear to each other," dated July, 1831, expressly rejected this as an "error," and made a much better statement of the case when he asserted that the federal government "partook, in its nature and object, of the character of a joint commission, appointed to superintend Senate Fournal, 21 Cong., 1 Sess., 316.

and administer the interests in which all are jointly concerned." 1

It would be difficult to maintain that the compact theory was not at least as much an original theory of the Constitution as any other. While the Constitution unquestionably provided for "a more perfect union" than that of the Confederation, there is no evidence that any large proportion of those who debated the matter in 1787-1788 looked upon the new union, so far as the theory of a compact between the states was concerned, as radically different from the old. To have thought otherwise would have been unnatural. The Constitution was not yet in operation. Constitutional law there was none. The particular course of national development could not be predicted. What was sought was a practical working scheme, a remedy for obvious ills, and not theoretical perfection. If it were true that nearly every provision of the Constitution rested upon some precedent in the practice of the states, it was also true that nearly every important provision was the result of compromise.

In the debates on the Constitution in the state conventions, a common objection was, indeed, the "consolidated government" which it was feared the new scheme would bring about; but the con

1 Calhoun, Works, VI., 59-94.

Robinson, Original and Derived Features of the Constitution (Am. Acad. of Polit. and Social Science, Annals, I., 203-243); Stevens, Sources of the Constitution.

1

solidation referred to was that which would subordinate the states, or even reduce them to mere administrative subdivisions, and not that transfer of certain governmental powers from the states to the nation which was involved in any federal organization. And it was this fear of state subordination that the friends of the Constitution sought particularly to allay. Hamilton wrote in an early number of the Federalist: "The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the National Sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of Sovereign power. This fully corresponds, in every national import of the terms, with the idea of a Federal Government." Had it been generally understood that the federal government, once established, would be beyond the control of the states save by the prescribed process of amendment to the Constitution, or that the federal judiciary was to be the final interpreter of the Constitution in all cases whatsoever, it may well be doubted whether the "new roof" would have been accepted at all.

It was the development of the doctrine of "implied powers" that showed the direction in which the federal government was tending. This doctrine, formulated in all essential particulars by

Cf. the debates in New York; Elliott, Debates (ed. of 1896), II., 205-414. Federalist (Dawson's ed.), No. 9, p. 54.

Hamilton in his opinion on the constitutionality of a national bank,1 elaborated by Webster in his great constitutional arguments before the supreme court, and stated with consummate clearness by Marshall in a long series of decisions, had given the federal authority a scope far beyond anything that could have been dreamed of by those who saw the national government inaugurated. "Implied powers" had chartered a national bank, enacted the alien and sedition laws, decreed an embargo, voted money for internal improvements, and established a protective tariff. If progress were to continue in this direction, the authority of the nation would soon be everywhere supreme, and the "sovereignty of the States" would become, ere long, only a memory and a name.

It was against this trend towards nationalism that the nullification doctrine protested. Hayne invoked the ancient theory of the Constitution, as he conceived it: a union of sovereign states, creating a federal government of delegated powers, and answerable to the states for its conduct within the limitations imposed upon it. From such a theory the right of protest by a state, and of refusal to obey an obnoxious statute if the protest went unheeded, followed naturally.

To the theory of nullification, as thus propounded, Webster opposed the theory of "the people." The doctrine of "the people," formulated by Marshall in his opinion in McCulloch vs. Maryland,' in 1819, and his most distinctive contribution to the theory of American constitutional law, was given classical expression by Webster in the "great debate." Yet no theory could have had a slighter historical foundation. From the beginning of the ratification of the Constitution to the end, there never was a moment when "the people of the whole United States" acted in "their collective capacity," or in any other manner than as "the people of the several States." "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same," is the declaration of the Constitution. If anything is clear beyond peradventure in the history of the United States, it is that the Constitution was established by the states, acting through conventions authorized by the legislatures thereof, and not by "the people of the United States" in any such sense as Webster gives to that phrase. In so far as the Constitution was ratified by popular conventions instead of by the state legislatures it is, in truth, "the people's Constitution," and not the creation of the state governments; but outside the geographical limits of the several states and the directions and conditions imposed by state constitutions and laws, the people of the United States have never yet had a voice in the establishment of their fundamental law. For