wards Chief-Justice, well put this point in the Convention of Connecticut. "If the United States go beyond their powers; if they make a law, which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it void." "Still, however," he added, "if the United States and the individual States will quarrel-if they want to fight, they may do it, and no frame of government can possibly prevent it." 20 And so, too, Chief-Justice Marshall observed that, "whenever hostility to the existing system shall become universal, it will also be irresistible. The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will."

It is impossible to foretell the ultimate consequences of the prostration of the Supreme Court. In quiet times, and when no issue which divides the nation is being contested, the decisions of the Court may still be regarded as binding upon all; but it is evident that the Legislature, when supported by a majority, can always go on making laws which are manifestly and avowedly not in agreement with the Constitution, and that the Supreme Court has no power to prevent these enactments from being put in force against the minority. Its jurisdiction may be questioned, and its judgments set at nought.

20 Story,' Commentaries" p. 267 (3rd ed. note), Book iii. c. iv.

CHAP. VI.

JUSTICE STORY'S PREDICTIONS.

107

There will then arise that state of things which Mr. Justice Story described as a day of evil never likely to be witnessed in the United States:-"The people may, if they please, submit all power to their rulers for the time being; but then the government should receive its true appellation and character. It would be a government of tyrants, elective, it is true, but still tyrants; and it would become the more fierce, vindictive, and sanguinary because it would perpetually generate factions in its own bosom, who could succeed only by the ruin of their enemies. . . . It would be as corrupt as it would be dangerous. It would form another model of that profligate and bloody democracy, which, at one time, in the French Revolution, darkened by its deeds the fortunes of France, and left to mankind the appalling lesson, that virtue and religion, genius and learning, the authority of wisdom and the appeals of innocence, are unheard and unfelt in the frenzy of popular excitement; and that the worst crimes may be sanctioned, and the most desolating principles inculcated, under the banners and in the name of liberty." This picture is a gloomy one, and every American would shrink back from the thought that there is a possibility it may be realized some day in his own land. But such catastrophes are always unforeseen. No nation ever believed that the violent convulsions which they find recorded in history they also are

21 Commentaries,' ii. p. 468, sect. 1621.

"21

destined to undergo. They wonder at the blindness and folly of the people who thus suffered, while at the same time they may be pursuing a course which must end in precisely the same results. Already the Americans are accustomed to see vast social and political changes carried out without reference to that "collected will" of which Webster speaks. The idea, so precious to the constructors of the government, that there should be one settled law, placed above the reach of time or change, by which all questions relating to the functions of any department of the government might be judged, has proved a dream. Laws will be made for the day. "A community," says a distinguished jurist, "which never hesitated to relax rules of written law whenever they stood in the way of an ideally perfect decision on the facts of particular cases, would only, if it bequeathed any body of judicial principles to posterity, bequeath one consisting of the ideas of right and wrong which happened to be prevalent at the time."22 It was wise in the Americans to improve their Constitution. But to undermine the tribunal which must be the expounder of that Constitution was an act of recklessness which is likely to be profoundly deplored hereafter by all classes of the people.

22 Maine's Ancient Law,' chapter iv.

CHAP. VII.

UNIVERSAL SUFFRAGE.

109

CHAPTER VII.

UNIVERSAL SUFFRAGE.

THE Federal Constitution left to the States in the Union the power which they originally possessed of determining for themselves the qualifications of electors, with the single condition that the electors for members of the House of Representatives" shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." Thus, uniformity is not found in the electoral system of the United States, and it cannot be strictly said that universal suffrage exists there. The laws of nearly all the States vary upon this important subject, and until very recently Congress had not assumed the right to dictate to any State the terms upon which it should admit its citizens to the franchise. But after the fall of the Southern Confederacy it decided that by right of conquest it could justly deprive the insurgent States of their "equal right of representation" until they consented to allow

1 Constitution, art. i. sect. 2.

negroes to vote, and in 1867 the same Congress advanced a step farther than this, and refused to admit into the Union two Territories as States unless they changed the organic law of their Constitutions so that it should not exclude negroes from the suffrage. This measure was not carried without protests and arguments from many members, who maintained that it was a proceeding utterly without precedent and warrant in Congress to fetter the States in their action upon an essential part of their internal policy, with which the Constitution inferentially forbade interference. But other members did not hesitate to affirm that Congress not only had the right to exclude new States, until they complied with any conditions it thought proper to impose, but that it ought also to insist upon States already in the Union modifying their Constitutions so that the emancipated race might be on an equality at the polls with the white citizen. "Pennsylvania," said one of the representatives of that State, "has not at this moment a Republican form of government, and I wish that Congress would compel it to organise one." And although these views were warmly opposed, still both houses of Congress refused by a large majority to admit Nebraska and Colorado as States until they had changed the electoral qualifications upon which they had fixed, and abolished distinction on the ground of race or colour.

2 See the debate in the House of Representatives, Jan. 15, 1867.