questions in the America of those days, and the utmost freedom in
expressing it. Over against the extreme democrats stood an illustrious
group whose leader was currently believed to be a monarchist at heart,
and who never concealed his contempt for the ignorance and folly of the
crowd. Among these men, and to a less extent among the Jeffersonians
also, there existed no small culture and literary power, and though the
masses were all orthodox Christians and, except in Maryland, orthodox
Protestants, there was no lack of scepticism in the highest circles. One
may speak of highest circles, for social equality, though rapidly
advancing and gladly welcomed, was as yet rather a doctrine than a fact:
and the respect for every kind of authority was great. There were
neither large fortunes nor abject poverty: but the labouring class, then
far less organized than it is now, deferred to the middle class, and the
middle class to its intellectual chiefs. The clergy were powerful in New
England: the great colonial families enjoyed high consideration in New
York, in Pennsylvania, and above all in Virginia, whose landowners
seemed to reproduce the later semi-feudal society of England. Although
all the States were republics of a hue already democratic, every State
constitution required a property qualification for the holding of office
or a seat in the Legislature, and, in most States, a similar condition
was imposed even on the exercise of the suffrage. Literary men (other
than journalists) were rare, the universities few and old-fashioned in
their methods, science scarcely pursued, philosophy absorbed in theology
and theology dryly dogmatic. But public life was adorned by many
striking figures. Five men at least of that generation, Washington,
Franklin, Hamilton, Jefferson and Marshall, belong to the history of the
world; and a second rank which included John Adams, Madison, Jay,
Patrick Henry, Gouverneur Morris, Roger Sherman, James Wilson, Albert
Gallatin, and several other gifted figures less familiar to Europe, must
be mentioned with respect.
Everybody professed the principles of the Declaration of Independence,
and therefore held a republican form of government to be the only
proper, or at any rate the only possible form for the central authority
as well as for the States. But of the actual working of republican
governments there was very little experience, and of the working of
democracies, in our present sense of the word, there was really none at
all beyond that of the several States since 1776, when they broke loose
from the British Crown. Englishmen are more likely than other Europeans
to forget that in 1788 there was in the Old World only one free and no
democratic nation[142]. In Europe there now remain but two strong
monarchies, those of Russia and Prussia, while the Western hemisphere,
scarcely excepting Dutch and British Guiana and Canada, is entirely (at
least in name) republican. But the world of 1788 was a world full of
monarchs—despotic monarchs—a world which had to go back for its notions
of popular government to the commonwealths of classical antiquity. Hence
the speculations of those times about the dangers, and merits, and
tendencies characteristic of free governments, were and must needs be
vague and fantastic, because the materials for a sound induction were
wanting. Wise men, when forced to speculate, recurred to the general
principles of human nature. Ordinary men went off into the air and
talked at large, painting a sovereign people as reckless, violent,
capricious on the one hand, or virtuous and pacific on the other,
according to their own predilections, whether selfish or emotional, for
authority or for liberty. Though no one has yet written the natural
history of the masses as rulers, the hundred years since 1788 have given
us materials for such a natural history surpassing those which Hamilton
possessed almost as much as the materials at the disposal of Darwin
exceeded those of Buffon. Hence in examining the views of the
_Federalist_ writers[143] and their antagonists, we must expect
sometimes to find the diagnosis inexact and the prognosis fanciful.
-----
Footnote 142:
The Swiss Confederation was hardly yet a nation, and few of the
cantons were governed democratically.
Footnote 143:
Of these writers Hamilton must be deemed the leading spirit, not
merely because he wrote by far the larger number of letters, but
because his mind was more penetrating and commanding than either
Madison’s or Jay’s. Madison rendered admirable service in the
Philadelphia Convention of 1787, but afterwards yielded to the
influence of Jefferson, a character with less balance but more force
and more intellectual fertility.
-----
II. PREDICTIONS OF THE OPPONENTS AND ADVOCATES OF THE CONSTITUTION.
Those who opposed the Draft Constitution of 1787, a party both numerous
and influential in nearly every State, were the men specially democratic
and also specially conservative. They disliked all strengthening of
government, and especially the erection of a central authority. They
were satisfied with the system of sovereign and practically independent
States. Hence they predicted the following as the consequences to be
expected from the creation of an effective Federal executive and
legislature[144].
1. The destruction of the States as commonwealths. The central
government, it was said, would gradually encroach upon their powers;
would use the federal army to overcome their resistance; would supplant
them in the respect of their citizens; would at last swallow them up.
The phrase ‘consolidation of the Union,’ which had been used by the
Convention of 1787 to recommend its draft, was laid hold of as a term of
reproach. ‘Consolidation,’ the absorption of the States by or into one
centralized government, became the popular cry, and carried away the
unthinking.
2. The creation of a despot in the person of the President. His legal
authority would be so large as not only to tempt him, but to enable him,
to extend it further, at the expense of the liberties both of States and
of people. ‘Monarchy,’ it was argued, ‘thrown off after such efforts,
will in substance return with this copy of King George III, whose
command of the federal army, power over appointments, and opportunities
for intriguing with foreign powers on the one hand and corrupting the
legislature on the other[145], will render the new tyrant more dangerous
than the old one. Or if he be more open to avarice than to ambition, he
will be the tool of foreign sovereigns and the means whereby they will
control or enslave America[146].’
-----
Footnote 144:
I take no account of those objections to the Constitution which may be
deemed to have been removed by the first eleven amendments.
Footnote 145:
See _The Federalist_, No. LIV.
Footnote 146:
_The Federalist_, No. LXVI, p. 667. ‘Calculating upon the aversion of
the people to monarchy, the writers against the Constitution have
endeavoured to enlist all their jealousies and apprehensions in
opposition to the intended President of the United States, not merely
as the embryo but as the full-grown progeny of that detested parent.
They have to establish the pretended affinity, not scrupled to draw
resources even from the regions of fiction. The authority of a
magistrate in few instances greater, in some instances less, than
those of a Governor of New York, have been magnified into more than
royal prerogatives. He has been decorated with attributes superior in
dignity and splendour to those of a King of Great Britain. He has been
shown to us with the diadem sparkling on his brow and the imperial
purple flowing in his train. He has been seated on a throne surrounded
with minions and mistresses, giving audience to the envoys of foreign
potentates in all the supercilious pomp of majesty. The images of
Asiatic despotism and voluptuousness have scarcely been wanting to
crown the exaggerated scene. We have been taught to tremble at the
terrific visages of murdering janizaries, and to blush at the unveiled
mysteries of a future seraglio.’
These were the days when Johnson and Gibbon ruled English style.
-----
3. The Senate will become an oligarchy. Sitting for six years, and not
directly elected by the people, it ‘must gradually acquire a dangerous
pre-eminence in the government, and finally transform it into a
tyrannical aristocracy[147].’
-----
Footnote 147:
_The Federalist_, No. LXII.
-----
4. The House of Representatives will also, like every other legislature,
aim at supremacy. Elected only once in two years, it will forget its
duty to the people. It will consist of ‘the wealthy and well-born,’ and
will try to secure the election of such persons only as its
members[148].
-----
Footnote 148:
_The Federalist_, Nos. LVI and LIX.
-----
5. The larger States will use the greater weight in the government which
the Federal constitution gives them to overbear the smaller States.
6. The existence of a strong central government is not only likely, by
multiplying the occasions of diplomatic intercourse with foreign powers,
to give openings for intrigues by them dangerous to American
independence, but likely also to provoke foreign wars, in which the
republic will perish if defeated, or if victorious maintain herself only
by vast expenditure, with the additional evil of having created in an
army a standing menace to freedom.
That some of these anticipations were inconsistent with others of them
was no reason why even the same persons should not resort to both in
argument. Any one who wishes to add to the number, for I have quoted but
a few, being those which turn upon the main outlines of the Philadelphia
draft, may do so by referring to the record, known as Elliott’s Debates,
of the discussions in the several State Conventions which deliberated on
the new Constitution. It is an eminently instructive record.
I pass from the opponents of the Constitution to its advocates. Hamilton
and its friends sought in it a remedy against what they deemed the
characteristic dangers of popular government. It is by dwelling on these
dangers that they recommend it. We can perceive, however, that, while
lauding its remedial power, they are aware how deep-seated such dangers
are, and how likely to recur even after the adoption of the
Constitution. The language which Hamilton held in private proves that he
desired a more centralized government, which would have approached
nearer to that British Constitution which he regarded as being, with all
its defects (and partly owing to its corruptions!), the best model for
free nations[149]. He feared anarchy, and thought that only a strong
national government could avert it. And in a remarkable letter written
in February, 1802, under the influence of disappointment with the course
events were then taking, he describes, in his somewhat sweeping way, the
Constitution he was ‘still labouring to prop’ as a ‘frail and worthless
fabric.’
-----
Footnote 149:
Though he, like other observers of that time, had not realized, and
might not have relished, the supremacy, now become omnipotence, which
the House of Commons had already won.
-----
We may therefore legitimately treat his list of evils to be provided
against by the new Federal Government as indicating the permanently
mischievous tendencies which he foresaw. Some of them, he is obliged to
admit, cannot be wholly averted by any constitutional devices, but only
by the watchful intelligence and educated virtue of the people.
The evils chiefly feared are the following:—
1. The spirit and power of faction, which is so clearly the natural and
necessary offspring of tendencies always present in mankind, that
wherever liberty exists it must be looked for[150].
-----
Footnote 150:
_The Federalist_, No. X (written by Madison), and in other letters.
-----
Its causes are irremovable; all you can do is to control its effects,
and the best prospect of overcoming them is afforded by the
representative system and the wide area of the United States with the
diversities among its population.
2. Sudden impulses, carrying the people away and inducing hasty and
violent measures[151].
-----
Footnote 151:
_The Federalist_, No. LXII.
-----
3. Instability in foreign policy, due to changes in the executive and in
public sentiment, and rendering necessary the participation of a
comparatively small council or Senate in the management of this
department.
4. Ill-considered legislation. ‘Facility and excess of law-making[152],’
and ‘inconstancy and mutability in the laws[153],’ form the ‘greatest
blemish in the character and genius of our governments.’
-----
Footnote 152:
_The Federalist_, No. LXI.
Footnote 153:
_The Federalist_, No. LXXII.
-----
5. The Legislature is usually the strongest power in free governments.
It will seek, as the example of the English Parliament shows, to
encroach upon the other departments; and this is especially to be feared
from the House of Representatives as holding the power of the
purse[154].
-----
Footnote 154:
‘The Legislative Department is everywhere (_i.e._ in all the States)
extending the sphere of its activity and drawing all power into its
impetuous vortex.... It is against the enterprising ambition of this
department that the People ought to indulge all their jealousy and
exhaust all their precautions’ (_The Federalist_, No. XLVII). The
people have now begun to resort to precautions; but it is not the
ambition of State legislatures that is feared, it is their
subserviency to private interests or the party machine.
-----
6. The States, and especially the larger States, may overbear the
Federal Government. They have closer and more constant relations with
the citizen, because they make and administer the ordinary laws he lives
under. His allegiance has hitherto belonged to them, and may not be
readily given to the central authority. In a struggle, should a struggle
come, State power is likely to prevail against Federal power.
7. There is in republics a danger that the majority may oppress the
minority. Already conspicuous in some of the State governments, as for
instance in Rhode Island, this danger may be diminished by the
application of the federal system to the great area of the Union, where
‘society will be broken into so many parts, interests, and classes of
citizens, that the rights of individuals or of the minority will be in
little danger from interested combinations of the majority[155].’
-----
Footnote 155:
_The Federalist_, No. L.
-----
8. Another source of trouble is disclosed by the rash and foolish
experiments which some States have tried in passing laws which threaten
the validity of contracts and the security of property. There are also
signs of weakness in the difficulty which State Governments have found
in raising revenue by direct taxation[156]. Citizens whose poverty does
not excuse their want of public spirit refuse to pay; and the
administration fears to coerce them.
-----
Footnote 156:
_The Federalist_, No. XII.
-----
Not less instructive than the fears of _The Federalist_ writers are
their hopes. Some of the perils which have since been disclosed are not
divined. Some institutions which have conspicuously failed are relied on
as full of promise.
The method of choosing the President is recommended with a confidence
the more remarkable because it was the point on which the Convention had
been most divided and had been latest in reaching an agreement.
‘If the manner of the appointment of the Chief Magistrate be not
perfect, it is at least excellent. It unites in an eminent degree all
the advantages the union of which was to be wished for.... The process
of election affords a moral certainty that the office of President will
never fall to the lot of any one who is not in an eminent degree endowed
with the requisite qualifications. Talents for low intrigue, and the
little arts of popularity, may alone suffice to elevate a man to the
first honours in a single State, but it will require other talents and a
different kind of merit to establish him in the confidence and esteem of
the whole Union, or of so considerable a portion of it as would be
necessary to make him a successful candidate for the distinguished
office of President of the United States. It will not be too strong to
say that there will be a constant probability of seeing the station
filled by characters pre-eminent for ability and virtue[157].’
-----
Footnote 157:
_The Federalist_, No. LXVII. In A.D. 1800, twelve years after Hamilton
wrote this passage, the contest for the Presidency lay between
Jefferson and Aaron Burr, and Hamilton was compelled by his sense of
Burr’s demerits to urge his party to vote (when the choice came before
the House of Representatives) for Jefferson, his own bitter enemy.
What he thought of Burr, who, but for his intervention, would
certainly have obtained the chief magistracy of the nation (and by
whose hand he ultimately died), may be inferred from the fact that he
preferred as President the man of whom he thus writes: ‘I admit that
his (Jefferson’s) politics are tinctured with fanaticism; that he is
too much in earnest in his democracy; that he has been a mischievous
enemy to the principal measures of our past administration; that he is
crafty and persevering in his objects; that he is not scrupulous about
the means of success, nor very mindful of truth; and that he is a
contemptible hypocrite. But, &c.’ (Letter to James A. Bayard, Jan. 16,
1801.)
After this it is superfluous, as it would be invidious, to dwell on
the deficiencies of some recent Presidents or Presidential candidates.
-----
It is assumed that America will continue an agricultural and (to a less
extent) a commercial country, but that she will not develop
manufactures; and also that the fortunes of her citizens will continue
to be small[158]. No serious apprehensions regarding the influence of
wealth in elections or in politics generally are expressed.
-----
Footnote 158:
‘The private fortunes of the President and Senators, as they must all
be American citizens, cannot possibly be sources of danger’ (_The
Federalist_, No. LIV).
-----
The contingency of a division of the States into two antagonistic groups
is not contemplated. When the possibility of State combinations is
touched on, it is chiefly with reference to the action of small and of
large States respectively. In particular no hint is dropped as to the
likelihood of the institution of slavery becoming a bond to unite the
Southern States and a cause of quarrel between them and the Northern.
Yet slavery had given trouble in the Philadelphia Convention, and an
opposition of North and South grounded upon it soon emerged.
Although the mischiefs of faction are dwelt on, nothing indicates that
its embodiment in highly developed party systems, whose organizations
might overshadow the legal government, had occurred to any one’s mind.
Still less, of course, is there any anticipation of the influence to be
exerted on politics by the distribution of offices. Not till long
afterwards were they treated as ‘spoils of war.’
III. CRITICISM OF THE PREDICTIONS OF 1788.
Let us now see which of these views and forecasts have been verified by
the event.
Of those put forth by the opponents of the Constitution not one has
proved true. The States are still strong, the President is not a despot,
though for a time during the Civil War he came near being one, nor has
he ever fallen under the influence of any European power. The House does
not consist of the ‘wealthy and well-born.’ The larger States do not
combine against nor press hardly on the smaller. No great country has
had so few wars or indeed so few foreign complications of any kind[159].
The Senate is still often called ‘an oligarchy,’ but this means only
that it consists of comparatively few persons, most of them wealthy, and
that it has a strong corporate feeling in favour of the personal
interests of each of its members. It is really as dependent on public
opinion as the House, perhaps even more afraid of public opinion, and as
directly the creature of party machinery, though less directly of
popular election.
-----
Footnote 159:
Three wars since 1789: that of 1812, that of 1845, and that of 1898.
Every one of these might no doubt have been avoided with honour, and
two of them savoured of aggression, but the same may be said of nearly
all the wars of European States.
-----
One is surprised to find that of the many arrows of accusation levelled
at the Constitution, all should have flown wide of the mark.
The deeper insight and more exact thinking of Hamilton and Madison
fastened upon most of the real and permanent weaknesses in popular
government. Yet even they could not foresee the particular forms which
those weaknesses would assume in the new nation. To examine in detail
the eight points specified above would involve an examination of
American history for a century. I shall therefore simply indicate in a
word or two the extent to which, in each case, the alarms or predictions
of _The Federalist_ may be deemed well grounded.
1. The spirit of faction has certainly, as Madison expected, proved less
intense over the large area of the Union than it did in the Greek
republics of antiquity or in the several States from 1776 to 1789. On
the other hand, the bonds of sympathy created by the Federal system have
at times enabled one State to infect another with its own vehemence. But
for South Carolina, there would have been no secession in 1861. Since
1880 the ‘demon of faction’ has been less powerful in the parties than
at any previous date since the so-called ‘Era of Good Feeling’ in 1820.
2. Sudden popular impulses there have been. But finding a ready and
constitutional expression in elections, they do not induce a resort to
arms, while the elaborate system of checks on legislation seldom allows
them to result in the passing of dangerous measures by Congress. In some
States the risk of bad laws is serious, but it is lessened by the
provisions of the Federal Constitution as well as by the veto power of
the State Governor and the restrictions of recent State Constitutions.
3. The early history of the Union furnishes illustrations of feebleness
and inconstancy in foreign policy, yet not greater than those which mark
most monarchies. Royal caprice, or the influence of successive
favourites, has proved more pernicious in absolute kingdoms or
principalities than popular fickleness in republics. That the foreign
policy of the United States was singularly consistent down till 1898,
when it suddenly took an entirely ‘new departure’ was not due to the
Senate. It must be credited partly to the good sense of the people,
partly to the fact that the position and interests of the nation
prescribed certain broad and simple lines.
4. Whatever may be thought of its handling of private bills, Congress
was seldom prone to haste or reckless expenditure in legislation on
public matters, until it passed the amazing Pensions Act of 1890. Nor
has it given the country too many laws. It has been on the whole more
blameable for what it neglects or postpones than for what it enacts. The
censure is more true of the States, especially the newer Western States.
5. The House of Representatives has doubtless sought to extend its sway
at the expense of other departments. Whether it has succeeded is a
question on which competent observers in America itself differ; but the
fact of their differing proves that the encroachments have not been
considerable. Whenever the President is weak or unpopular, Congress
seems to be gaining on the Executive Chief. When the latter is or seems
strong, he can keep the Legislature at bay.
6. In the struggle which never quite ceases, though it is often scarcely
noticed, between the States and the Federal Government, the States have
on the whole lost ground. Nor are the larger States practically more
formidable than the small ones. The largest is small compared with the
immense Union. No State would now venture to brave the Federal Judiciary
as Georgia did, and for a time did successfully (1832), in one of the
painful cases regarding the Cherokee Indians.
7. The so-called Tyranny of the Majority, a subject too large to be
fully examined here[160], has not hitherto proved a serious evil in
America. This, however, is due rather to the character and habits of the
people and their institutions generally than to the mere extent and
population of the Union, on which the _Federalist_ writers relied.
-----
Footnote 160:
The subject is discussed in the author’s _American Commonwealth_,
chaps. lxxxiv and lxxxv.
-----
8. There has been some unwise Congressional legislation, especially in
currency matters, and, of course, much more of unwise State legislation.
But property is secure, and the sense of civic duty seems, on the whole,
to be improving.