may govern itself and supply the machinery of local self-government, it does not follow that such a State may deny Human Rights within its borders. State Rights, when properly understood, are entirely consistent with the maintenance of Human Rights by the Nation. The State is not humbled, when it receives the mandate of the Nation to do no wrong; nor can the Nation err, when it asserts everywhere within its borders the imperialism of Human Rights. Against this righteous supremacy all pretensions of States must disappear, as darkness. before the King of Day.

The song of State Rights has for its constant refrain. the asserted Equality of the States. Is it not strange that words so constantly employed as a cover for pretensions against Human Rights cannot be found in the Constitution? It is true, that, by the Laws of Nations, all sovereign States, great or small, are equal; but this principle has been extended without authority to States created by the Nation and made a part of itself. There is but one active provision in the Constitution which treats the States as equal, and this provision shows how this very Equality may be waived. Every State, large or small, has two Senators, and the Constitution places. this Equality of States under its safeguard by providing that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." But this very text contains what lawyers might call a "negative pregnant," being a negation of the right to change this rule, with an affirmation that it may be changed. The State, with its consent, may be deprived of its equal suffrage in the Senate. And this is the whole testimony of the Constitution to that Equality of States which is now asserted in derogation of all compacts or conditions. It

is startling to find how constantly the obvious conclusions from the text of the Constitution have been overlooked. Even in the contemplation of the Constitution itself, a State may waive its equal suffrage in the Senate, so as to be represented by a single Senator only. Of course, all this must depend on its own consent, in concurrence with the Nation. Nothing is said of the manner in which this consent may be given by the State or accepted by the Nation. But if this important limitation can in any way be made the subject of agreement or compact, pray, Sir, where will you stop? What other power or prerogative of the State may not be limited also, especially where there is nothing in the Constitution against any such limitation? All this I adduce simply by way of illustration. There is no question now of any limitation, in the just sense of this term. A condition in favor of Human Rights cannot be a limitation on a State or on a citizen.

If we look further, and see how the Senatorial equality of States obtained recognition in the Constitution, we shall find new occasion to admire that facility which has accorded to this concession so powerful an influence; and here the record is explicit. The National Convention had hardly assembled, when the small States came forward with their pretensions. Not content with suffrage in the Senate, they insisted upon equal suffrage in the House of Representatives. They had in their favor the rule of the Continental Congress, and also of the Confederation, under which each State enjoyed one vote. Assuming to be independent sovereignties, they had likewise in their favor the rule of International Law. Against these pretensions the large States pleaded the simple rule of justice; and here the best minds con

curred. On this head the debates of the Convention are interesting. At an early day we find Mr. Madison moving "that the equality of suffrage established by the Articles of Confederation ought not to prevail in the National Legislature." This proposition, so consistent with reason, was seconded by Gouverneur Morris, and, according to the report, "being generally relished," was about being adopted, when Delaware, by one of her voices on the floor, protested, saying, that, in case it were adopted, "it might become the duty of her deputies to retire from the Convention." 2 Such was the earliest cry of Secession. Gouverneur Morris, while observing that the valuable assistance of those members could not be lost without real concern, gave his testimony, that “the change proposed was so fundamental an article in a National Government that it could not be dispensed with."3 Mr. Madison followed, saying, very justly, that, "whatever reason might have existed for the equality of suffrage when the Union was a Federal one among sovereign States, it must cease when a National government should be put into the place." 4 Franklin, in similar spirit, reminded the Convention that the equal suffrage of the States "was submitted to originally by Congress under a conviction of its impropriety, inequality, and injustice." This is strong language from the wise old man, but very true. Elbridge Gerry, after depicting the States as "intoxicated with the idea of their sovereignty," said that "the injustice of allowing each State an equal vote was long insisted on. He voted for it; but it was against his judgment, and under the pressure of

1 Debates in the Federal Convention, May 30, 1787: Madison Papers, Vol. II. p. 751.

2 Ibid.

3 Ibid.

5 Debates, June 11th: Ibid., p. 841.

4 Ibid., p. 752.

public danger and the obstinacy of the lesser States.” 1 Against these overwhelming words of Madison, Morris, Franklin, and Gerry, the delegates from Delaware pleaded nothing more than that, without an equal suffrage, "Delaware would have about one ninetieth for its share in the general councils, whilst Pennsylvania and Virginia would possess one third of the whole "; 2 and New Jersey, by her delegates, pleaded also "that it would not be safe for Delaware to allow Virginia sixteen times as many votes" as herself.3 On the part of the small States, the effort was for power disproportioned to size. On the part of the large States there was a protest against the injustice and inequality of these pretensions, especially in a government national in its character. The question was settled by the great compromise of the Constitution, according to which representation in the House of Representatives was proportioned to population, while each State was entitled to an equal suffrage in the Senate. To this extent the small States prevailed, and the Senate ever since has testified to the equality of States; or rather, according to the language of the "Federalist" on this very point, it has been "a palladium to the residuary sovereignty of the States."4 Thus, by the pertinacity of the small States, was this concession extorted from the Convention, in defiance of every argument of justice and equity, and contrary to the judgment of the best minds; and now it is exalted into a universal rule of Constitutional Law, before which justice and equity must hide their faces.

This protracted and recurring conflict in the Con

1 Debates, June 29th: Madison Papers, Vol. II. p. 995.

2 Debates, June 8th: Ibid., p. 826.

8 Debates, June 19th: Ibid., p. 902.

4 No. XLIII. § 8.

vention is compendiously set forth by our great authority, Judge Story, when he says:

"It constituted one of the great struggles between the large and the small States, which was constantly renewed in the Convention, and impeded it in every step of its progress in the formation of the Constitution. The struggle applied to the organization of each branch of the Legislature. The small States insisted upon an equality of vote and representation in each branch, and the large States upon a vote in proportion to their relative importance and population. . The small States at length yielded the point as to an equality of representation in the House, and acceded to a representation proportionate to the Federal numbers. But they insisted upon an equality in the Senate. To this the large States were unwilling to assent, and for a time the States were on this point equally divided." 1

This summary is in substantial harmony with my own abstract of the debates. I present it because I would not seem in any way to overstate the case. And here let me add most explicitly, that I lend no voice to any complaint against the small States; nor do I suggest any change in the original balances of our system. I insist only that the victory achieved in the Constitution by the small States shall not be made the apology for a pretension inconsistent with Human Rights. And now, for the sake of a great cause, the truth must be told.

It must not be disguised that this pretension has another origin, outside the Constitution. This is in the Ordinance of 1787, where it is positively provided that any State formed out of the Northwest Territory "shall be admitted, by its delegates, into the Congress of the

1 Commentaries on the Constitution, (2d edit.,) Vol. I. § 694.