There was great diversity of opinion and feeling on all political

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.

Studies in history and jurisprudence, volume 1 (of 2) · 第 27 / 40 段