have been to give up one of the greatest advantages of a second Chamber. On the other hand, to have denied all control in its formation to the sovereign People, would have been to nullify the great principle of the Declaration of Independence, that " governments derive their just powers from the consent of the governed." The State Legislatures had already been elected by the People. To confide to their hands, therefore, the election to the Senate, and in equal proportions, was at once to satisfy the State and the People, and yet in no degree to depart from the principle of a National government.

It has been asserted, that the organization of the Senate is a standing acknowledgment of the complete sovereignty and independence of the several States.1 Were this the case, so far from its possessing a conservative and beneficial influence, it would become the fertile source of anarchy and confusion. Such sovereignty and independence were the great evils of the Confederation; and all contemporary history shows that their limitation was one of

1 The American Union, 228.

the principal objects of the Constitution. That assertion, however, is not true. Each State had confessedly the full power to accept or refuse the Constitution. The concession of equal representation in one of the Houses was offered to induce unanimous adoption, and succeeded with only two temporary exceptions, viz., North Carolina and Rhode Island. But the States having accepted it, sovereignty, in the complete sense of the term, was at the same time surrendered. Their separate and independent existence thenceforth continued for internal and municipal purposes. For these, and these only, "the State," to use Mr. Spence's own words, "is as supreme as the Federal law. No question exists of relative rank, of any superiority; each is supreme in its own department; both are equally powerless beyond it." The States are no more separate for all National purposes than are English counties, and far less so than Ireland from England before the Union; and they are

1 See Letter of the Federal Convention to Congress, accompanying the Constitution, ante, 54.

2 The American Union, 213.

no more independent than our own municipalities, the sole difference being, that in their case autonomy is secured by the supremacy of a Constitution liable to amendment, and in ours by the supremacy of a law liable to change.

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VI.

THE SUPREME JUDICIARY.

ONE of the objects of the Constitution, as stated in the preamble, is "to establish justice." The want of a court of final appeal, especially between the States and Congress, had been severely felt under the Confederation. Congress could command; but what if the States would not obey? No means of coercion were provided. Requisitions had been laid upon them for the expenses of the war; but even the struggle for independence failed to arouse them to a sense of their duty. These articles provided that every State should be bound by the decision of Congress, and the right, not only to make these requisitions, and even to compel their payment, was never doubted; but the defect was in the means of enforcement; for the Federal army itself was divided into sectional divisions; it was, in fact, a collection of small armies from the separate

The

States, and had it been employed for such a purpose, it would have looked more like one State forcing another State, than an act of the General Government, and civil war must have been the result. In short, Congress was entirely Federal in its character, and deficient in the true elements of sovereignty. Union was nothing but a confederation, and its articles a loose compact. The touch of an armed hand upon any one of its links would have broken the ill-connected chain. Hamilton saw this, when he said in the New York Convention, "Sir, if we have National objects to pursue, we must have National revenue. If you make requisitions, and they are not complied with, what is to be done? It has been well observed, that to coerce the States is one of the maddest projects that was ever devised. But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream. It is impossible. Then we are brought to this dilemma: either a Federal standing army is to enforce the requisition, or a Federal treasury is left without supplies, and the Government without support.