features. Jefferson, too, as quoted by our author, declared to Madison in 1786: "With respect to everything external, we be one nation only, firmly hooked together. Internal government is what each State should keep to itself." In a labored argument, the commentator seeks to show that the phrase, "We, the people of the United States," might perhaps have been employed by the constitution-makers in the sense of "We, the people of the confederated States of New Hampshire, etc., not as one civil Body-politic, but as a league" (p. 296). But Richard Henry Lee, the "Federal Farmer," gave the phrase its simple and natural construction when he said, in October, 1787, "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 adopted, not by the people of New Hampshire, Massachusetts, etc., but by the people of the United States."

The difficulty with the arguments advanced in support of the State-compact theory has always been, that they wrest terms from their true meaning, and juggle with definitions. The system of our Constitution under which the Federal government exercises the Supremacy, within its appropriate sphere, so distinctly stated by Professor Tucker, does not allow to the States the enjoyment of "sovereignty" within the usual meaning of that term. To attempt to assign to the States their true position by any ordinary use of that term, is necessarily misleading. So, as we have seen above, the idea of a supreme Body-politic, such as our commentator describes, can be applied only to the nation; and the attempt to place the States in the like category can result only in confusion of thought. Professor Tucker seems to take umbrage at the presumption of Mr. von Holst, a

foreigner born, in writing upon our constitutional history and criticising our statesmen. But his own pages furnish justification of Mr. von Holst's complaint that American statesmen have "bona fide, used the same word in most opposite senses, and employed words as synonymous which denoted ideas absolutely irreconcilable."

Bent on subjecting every circumstance to the support of his chosen thesis, Professor Tucker finds in the declaration of the convention of Virginia, on May 15, 1776, in favor "of a total separation from the crown and government of Great Britain," some evidence of individual action as a sovereign State. But Virginia at the same time declared for united action of the colonies toward independence, reserving to each colony the regulation of local and internal concerns; and thus, like Maryland, Virginia was at the outset of the movement for independence, prefiguring the dual system. Again, respecting the deed of cession to Congress of the Northwestern lands, made by Virginia in 1784, Professor Tucker argues that Congress was, by its acceptance of the deed, estopped to deny that Virginia, and not Congress, had theretofore "exclusive right of soil and jurisdiction to the territory thus ceded"; not considering the fact that, in yielding as she did, after a hot discussion for several years, to the claim of the smaller States that only the whole nation had a valid title in law to that "right of soil and jurisdiction," and thereupon joining in the national legislation for the government of that territory on a national basis, Virginia acquiesced in the national theory and became in honor estopped to deny it thereafter.

The correct method of formulating a satisfactory theory of the genesis of our Constitution will not p

a reliance upon contemporaneous declarations on either side of the disputed question. The results accomplished in fact must be allowed their proper weight, and often these will outweigh contemporary theories. So it is true that the lapse of years, furnishing a historical perspective, should enable "men a century thereafter" to better understand the constitutional process and its results. Professor Tucker demurs to this method of determining whether the Federal Constitution was an interState compact or an authoritative law. But he has employed the same process, with signal success, in his discussion of abstract Sovereignty and the abstract Body-politic. On these subjects he reasons a priori, and in disregard of contemporary theory. The Bodies-politic he discovers in the original thirteen States took form at the instance of men, many of whom firmly believed in the Social-compact theory of government, and helped to embody that theory in laws and constitutions and judicial decisions. And here comes Professor Tucker, "a century thereafter," and says of it: "This theory is fiction, and as an hypothesis is unsound, and must lead to error" (p. 3). So he employs more modern canons of study, and tests the processes of the formation of governments, in part by principles now considered as established, and in part by the results attained. A like independence of original investigation, employing the same a priori processes of reasoning, leads us to reject on similar grounds the inter-state-compact theory of the Constitution, and to attribute its creation to the People of the United States as a Body-Politic.

Outside of the controversial portions of his treatise, in respect to which he seems to hold a brief, Professor Tucker's commentaries on the Constitution are judicious

and well-considered. He seems to favor, with Chief Justice Marshall, and as lawyers usually do, a fair and reasonable construction of that great instrument, rather than either extreme of a strict construction which would fetter its necessary operations, or a broad and latitudinarian construction which would render its limitations meaningless.

XV.

THE GENESIS OF CONSTITUTIONS.*

Judge Jameson's well-known treatise has grown in value and importance during the quarter-century since its first appearance. It is that American institution, the written constitution, which calls for the friendly offices of the Constitutional Convention; and the presentation of the fourth edition of this treatise brings with it a fresh suggestion of the peculiarly American flavor of the book. The making and amending of constitutions is one of our industries; and the author's statistical table chronicles 192 conventions, held for these purposes, since “the embattled farmer stood and fired the shot heard round the world." Evidently the American mind is losing none of its old-time preference for written over unwritten constitutions. This great development of constitutionmaking naturally stimulates inquiry concerning the agency by which the work is done.

An understanding of the process of construction will be a pertinent introduction to a critical examination

From The Dial, December, 1887. A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding. By John Alexander Jameson, L.L.D. Fourth Edition. Chicago: Callaghan & Co.