85 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 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. The 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. What, sir, is the cure for this great evil? Nothing, but to enable the National Government to operate on individuals in the same manner as those of the States do."1 Now, it is clear that in every country in which order is to reign there must be some tribunal, than which there is no higher, or the will of every man will be a law unto himself. If the Constitution was to be the "supreme law of the land," who was authoritatively to interpret its provisions and decide their application? To this important question, therefore, the Constitutional Convention directed its earnest attention, and to its consideration Madison brought the results of very mature study. We find in a letter to Washington, some months before, an opinion thus expressed: "The National supremacy ought also to be extended, as I conceive, to the judiciary departments. If those who are to expound and apply the laws are connected by their interests and their oaths with the par 1 Eloquence of the United States, i. 26. Mr. Spence has used the former part of this quotation as if it had referred to the state of affairs as they exist under the Constitution. ticular States wholly, and not with the Union, the participation of the Union in the making of the laws may be possibly rendered unavailing. It seems, at least, necessary, that the oaths of the judges should include a fidelity to the general as well as local constitution, and that an appeal should lie to some National tribunals in all cases to which foreigners or inhabitants of other States may be parties."1 One of the first resolutions which the Convention adopted, in conformity with the recommendation of Congress, was,-"That a National Government ought to be established, consisting of a supreme Legislature, Executive, and Judiciary." But it was only after long and earnest discussion that the Judiciary was invested with the power to interpret the Constitution. At one time they had decided it should be placed with the National Legislature, with whom they declared ought to vest a power to "negative all laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union, or any treaties made under the authority of 'Life of Washington, ix. 518. 2 Hist. of the Const., CURTIS, ii. 22. 1 the Union." To this principle Madison at first assented. In the letter last quoted he had "proposed that the Federal Government should be armed with complete authority for for all cases requiring uniformity of taxation and the regulations of trade;" and he went still further:-"Over and above this positive power, a negative in all cases whatsoever on legislative acts of the States, as heretofore exercised by the kingly prerogative, appears to me absolutely necessary." Without this, he feared there would be invasion of the National jurisdiction, and discord among the States;2 and he afterwards, in Convention, suggested that such a power might be vested in the Senate. But he seems to have given up this idea for one equally effective, and likely to be more acceptable to the States. Curtis tells us that it was "at his suggestion a clause in Governor Randolph's plan, authorizing the use of force against a delinquent member of the Confederacy, was laid aside, in order that a 1 Idem, ii. 51. ELLIOTT, V. 139. 2 Life of WASHINGTON, ix. 517. Italics sic. |