"WE, THE PEOPLE"
An account of the American Revolution which took cognizance only of the
armed conflict with England would tell much less than half the truth,
and even that half would be misleading. If anyone doubts that the real
inspiration which made America a nation was drawn, not from Whiggish
quarrels about taxes, but from the great dogmas promulgated by
Jefferson, it is sufficient to point out that the States did not even
wait till their victory over England was assured before effecting a
complete internal revolution on the basis of those dogmas. Before the
last shot had been fired almost the last privilege had disappeared.
The process was a spontaneous one, and its fruits appear almost
simultaneously in every State. They can be followed best in Virginia,
where Jefferson himself took the lead in the work of revolutionary
reform.
Hereditary titles and privileges went first. On this point public
feeling became so strong that the proposal to form after the war a
society to be called "the Cincinnati," which was to consist of those who
had taken a prominent part in the war and afterwards of their
descendants, was met, in spite of the respect in which Washington and
the other military heroes were held, with so marked an expression of
public disapproval that the hereditary part of the scheme had to be
dropped.
Franchises were simplified, equalized, broadened, so that in practically
every State the whole adult male population of European race received
the suffrage. Social and economic reforms having the excellent aim of
securing and maintaining a wide distribution of property, especially of
land, were equally prominent among the achievements of that time.
Jefferson himself carried in Virginia a drastic code of Land Laws,
which anticipated many of the essential provisions which through the
_Code Napoleon_ revolutionized the system of land-owning in Europe. As
to the practical effect of such reforms we have the testimony of a man
whose instinct for referring all things to practice was, if anything, an
excess, and whose love for England was the master passion of his life.
"Every object almost that strikes my view," wrote William Cobbett many
years later, "sends my mind and heart back to England. In viewing the
ease and happiness of this people the contrast fills my soul with
indignation, and makes it more and more the object of my life to assist
in the destruction of the diabolical usurpation which has trampled on
king as well as people."
Another principle, not connected by any direct logic with democracy and
not set forth in the Declaration of Independence, was closely associated
with the democratic thesis by the great French thinkers by whom that
thesis was revived, and had a strong hold upon the mind of Jefferson--the
principle of religious equality, or, as it might be more exactly defined,
of the Secular State.
So many loose and absurd interpretations of this principle have been and
are daily being propounded, that it may be well to state succinctly what
it does and does not mean.
It does not mean that anyone may commit any anti-social act that appeals
to him, and claim immunity from the law on the ground that he is impelled
to that act by his religion; can rob as a conscientious communist, murder
as a conscientious Thug, or refuse military service as a conscientious
objector. None understood better than Jefferson--it was the first principle
of his whole political system--that there must be _some_ basis of
agreement amongst citizens as to what is right and what is wrong, and that
what the consensus of citizens regards as wrong must be punished by the
law. All that the doctrine of the Secular State asserted was that such
general agreement among citizens need not include, as in most modern States
it obviously does not include, an agreement on the subject of religion.
Religion is, so to speak, left out of the Social Contract, and consequently
each individual retains his natural liberty to entertain and promulgate
what views he likes concerning it, so long as such views do not bring him
into conflict with those general principles of morality, patriotism and
social order upon which the citizens of the State _are_ agreed, and
which form the basis of its laws.
The public mind of America was for the most part well prepared for the
application of this principle. We have already noted how the first
experiment in the purely secular organization of society had been made
in the Catholic colony of Maryland and the Quaker colony of Pennsylvania.
The principle was now applied in its completeness to one State after
another. The Episcopalian establishment of Jefferson's own State was the
first to fall; the other States soon followed the example of Virginia.
At the same time penalties or disabilities imposed as a consequence of
religious opinions were everywhere abrogated. Only in New England was
there any hesitation. The Puritan States did not take kindly to the idea
of tolerating Popery. In the early days of the revolution their leaders
had actually made it one of the counts of their indictment against the
British Government that that Government had made peace with Anti-Christ
in French Canada--a fact remembered to the permanent hurt of the
Confederacy when the French Canadians were afterwards invited to make
common cause with the American rebels. But the tide was too strong even
for Calvinists to resist; the equality of all religions before the law
was recognized in every State, and became, as it remains to-day, a
fundamental part of the American Constitution.
It may be added that America affords the one conspicuous example of the
Secular State completely succeeding. In France, where the same principles
were applied under the same inspiration, the ultimate result was something
wholly different: an organized Atheism persecuting the Christian Faith.
In England the principle has never been avowedly applied at all. In theory
the English State still professes the form of Protestant Christianity
defined in the Prayer-book, and "tolerates" dissenters from it as the
Christian States of the middle ages tolerated the Jews, and as in France,
during the interval between the promulgation of the Edict of Nantes and
its revocation, a State definitely and even pronouncedly Catholic
tolerated the Huguenots. Each dissentient religious body claims its right
to exist in virtue of some specific Act of Parliament. Theoretically it
is still an exception, though the exceptions have swallowed the rule.
Moreover, even under this rather hazy toleration, those who believe
either more or less than the bulk of their fellow-countrymen and who
boldly proclaim their belief usually find themselves at a political
disadvantage. In America it never seems to have been so. Jefferson
himself, a Deist (the claim sometimes made that he was a "Christian"
seems to rest on nothing more solid than the fact that, like nearly all
the eighteenth-century Deists, he expressed admiration for the character
and teaching of Jesus Christ), never for a moment forfeited the
confidence of his countrymen on that account, though attempts were made,
notably by John Adams, to exploit it against him. Taney, a Catholic, was
raised without objection on that score to the first judicial post in
America, at a date when such an appointment would have raised a serious
tumult in England. At a later date Ingersoll was able to vary the
pastime of "Bible-smashing" with the profession of an active Republican
wire-puller, without any of the embarrassments which that much better
and honester man, Charles Bradlaugh, had to encounter. The American
Republic has not escaped the difficulties and problems which are
inevitable to the Secular State, when some of its citizens profess a
religion which brings them into conflict with the common system of
morals which the nation takes for granted; the case of the Mormons is a
typical example of such a problem. But there is some evidence that, as
the Americans have applied the doctrine far more logically than we, they
have also a keener perception of the logic of its limitations. At any
rate, it is notable that Congress has refused, in its Conscription Act,
to follow our amazing example and make the conscience of the criminal
the judge of the validity of legal proceedings against him.
Changes so momentous, made in so drastic and sweeping a fashion in the
middle of a life and death struggle for national existence, show how
vigorous and compelling was the popular impulse towards reform. Yet all
the great things that were done seem dwarfed by one enormous thing left
undone; the heroic tasks which the Americans accomplished are forgotten
in the thought of the task which stared them in the face, but from which
they, perhaps justifiably, shrank. All the injustices which were
abolished in that superb crusade against privilege only made plainer the
shape of the one huge privilege, the one typical injustice which still
stood--the blacker against such a dawn--Negro Slavery.
It has already been mentioned that Slavery was at one time universal in
the English colonies and was generally approved by American opinion,
North and South. Before the end of the War of Independence it was almost
as generally disapproved, and in all States north of the borders of
Maryland it soon ceased to exist.
This was not because democratic ideals were more devotedly cherished in
the North than in the South; on the whole the contrary was the case. But
the institution of Slavery was in no way necessary to the normal life
and industry of the North; its abrogation made little difference, and
the rising tide of the new ideas to which it was necessarily odious
easily swept it away. In their method of dealing with it the Northerners,
it must be owned, were kinder to themselves than to the Negroes. They
declared Slavery illegal within their own borders, but they generally
gave the slave-holder time to dispose of his human property by selling
it in the States where Slavery still existed. This fact is worth noting,
because it became a prime cause of resentment and bitterness when, at a
later date, the North began to reproach the South with the guilt of
slave-owning. For the South was faced with no such easy and manageable
problem. Its coloured population was almost equal in number to its white
colonists; in some districts it was even greatly preponderant. Its staple
industries were based on slave labour. To abolish Slavery would mean an
industrial revolution of staggering magnitude of which the issue could
not be foreseen. And even if that were faced, there remained the sinister
and apparently insoluble problem of what to do with the emancipated
Negroes. Jefferson, who felt the reproach of Slavery keenly, proposed to
the legislature of Virginia a scheme so radical and comprehensive in its
character that it is not surprising if men less intrepid than he refused
to adopt it. He proposed nothing less than the wholesale repatriation of
the blacks, who were to set up in Africa a Negro Republic of their own
under American protection. Jefferson fully understood the principles and
implications of democracy, and he was also thoroughly conversant with
Southern conditions, and the fact that he thought (and events have
certainly gone far to justify him) that so drastic a solution was the
only one that offered hope of a permanent and satisfactory settlement is
sufficient evidence that the problem was no easy one. For the first time
Jefferson failed to carry Virginia with him; and Slavery remained an
institution sanctioned by law in every State south of the Mason-Dixon Line.
While the States were thus dealing with the problems raised by the
application to their internal administration of the principles of the
new democratic creed, the force of mere external fact was compelling
them to attempt some sort of permanent unity. Those who had from the
first a specific enthusiasm for such unity were few, though Washington
was among them, and his influence counted for much. But what counted for
much more was the pressure of necessity. It was soon obvious to all
clear-sighted men that unless some authoritative centre of union were
created the revolutionary experiment would have been saved from
suppression by arms only to collapse in mere anarchic confusion. The
Continental Congress, the only existing authority, was moribund, and
even had it been still in its full vigour, it had not the powers which
the situation demanded. It could not, for instance, levy taxes on the
State; its revenues were completely exhausted and it had no power to
replenish them. The British Government complained that the conditions of
peace were not observed on the American side, and accordingly held on to
the positions which it had occupied at the conclusion of the war. The
complaint was perfectly just, but it did not arise from deliberate bad
faith on the part of those who directed (as far as anyone was directing)
American policy, but from the simple fact that there was no authority in
America capable of enforcing obedience and carrying the provisions of
the treaty into effect. The same moral was enforced by a dozen other
symptoms of disorder. The Congress had disbanded the soldiers, as had
been promised, on the conclusion of peace, but, having no money, could
not keep its at least equally important promise to pay them. This led to
much casual looting by men with arms in their hands but nowhere to turn
for a meal, and the trouble culminated in a rebellion raised in New
England by an old soldier of the Continental Army called Shay. Such
incidents as these were the immediate cause of the summoning at
Philadelphia of a Convention charged with the task of framing a
Constitution for the United States.
Of such a Convention Washington was the only possible President; and he
was drawn from a temporary and welcome retirement in his Virginian home
to re-enter in a new fashion the service of his country. Under his
presidency disputed and compromised a crowd of able men representative
of the widely divergent States whose union was to be attempted. There
was Alexander Hamilton, indifferent or hostile to the democratic idea
but intensely patriotic, and bent above all things upon the formation of
a strong central authority; Franklin with his acute practicality and his
admirable tact in dealing with men; Gerry, the New Englander, Whiggish
and somewhat distrustful of the populace; Pinckney of South Carolina, a
soldier and the most ardent of the Federalists, representing, by a
curious irony, the State which was to be the home of the most extreme
dogma of State Rights; Madison, the Virginian, young, ardent and
intellectual, his head full of the new wine of liberty. One great name
is lacking. Jefferson had been chosen to represent the Confederacy at
the French Court, where he had the delight of watching the first act of
that tremendous drama, whereby his own accepted doctrine was to re-shape
France, as it had already re-shaped America. The Convention, therefore,
lacked the valuable combination of lucid thought on the philosophy of
politics and a keen appreciation of the direction of the popular will
which he above all men could have supplied.
The task before the Convention was a hard and perilous one, and nothing
about it was more hard and perilous than its definition. What were they
there to do? Were they framing a treaty between independent
Sovereignties, which, in spite of the treaty, would retain their
independence, or were they building a nation by merging these
Sovereignties in one general Sovereignty of the American people? They
began by proceeding on the first assumption, re-modelling the
Continental Congress--avowedly a mere alliance--and adding only such
powers as it was plainly essential to add. They soon found that such a
plan would not meet the difficulties of the hour. But they dared not
openly adopt the alternative theory: the States would not have borne it.
Had it, for example, been specifically laid down that a State once
entering the Union might never after withdraw from it, quite half the
States would have refused to enter it. To that extent the position
afterwards taken up by the Southern Secessionists was historically
sound. But there was a complementary historical truth on the other side.
There can be little doubt that in this matter the founders of the
Republic desired and intended more than they ventured to attempt. The
fact that men of unquestionable honesty and intelligence were in after
years so sharply and sincerely divided as to what the Constitution
really _was_, was in truth the result of a divided mind in those who
framed the Constitution. They made an alliance and hoped it would grow
into a nation. The preamble of the Constitution represents the
aspirations of the American Fathers; the clauses represent the furthest
they dared towards those aspirations. The preamble was therefore always
the rallying point of those who wished to see America one nation. Its
operative clause ran: "We, the People of the United States, in order to
form a more perfect Union, ... do ordain and establish this Constitution
for the United States of America." That such language was a strong point
in favour of the Federalist interpreters of the Constitution was
afterwards implicitly admitted by the extreme exponents of State
Sovereignty themselves, for when they came to frame for their own
Confederacy a Constitution reflecting their own views they made a most
significant alteration. The corresponding clause in the Constitution of
the Southern Confederacy ran, "We, _the deputies of the Sovereign and
Independent States_, ... do ordain," etc., etc.
For the rest two great practical measures which involved no overbold
challenge to State Sovereignty were wisely planned to buttress the Union
and render it permanent. A clause in the Constitution forbade tariffs
between the States and established complete Free Trade within the limits
of the Union. An even more important step was that by which the various
States which claimed territory in the as yet undeveloped interior were
induced to surrender such territory to the collective ownership of the
Federation. This at once gave the States a new motive for unity, a
common inheritance which any State refusing or abandoning union must
surrender.
Meanwhile it would be unjust to the supporters of State Rights to deny
the excellence and importance of their contribution to the
Constitutional settlement. To them is due the establishment of local
liberties with safeguards such as no other Constitution gives. And, in
spite of the military victory which put an end to the disputes about
State Sovereignty and finally established the Federalist interpretation
of the Constitution, this part of their work endures. The internal
affairs of every State remain as the Constitution left them, absolutely
in its own control. The Federal Government never interferes save for
purposes of public taxation, and, in the rare case of necessity, of
national defence. For the rest nine-tenths of the laws under which an
American citizen lives, nearly all the laws that make a practical
difference to his life, are State laws. Under the Constitution, as
framed, the States were free to form their separate State Constitutions
according to their own likings, and to arrange the franchise and the
test of citizenship, even for Federal purposes, in their own fashion.
This, with the one stupid and mischievous exception made by the
ill-starred Fifteenth Amendment, remains the case to this day, with the
curious consequence, among others, that it is now theoretically possible
for a woman to become President of the United States, if she is the
citizen of a State where female suffrage is admitted.
Turning to the structure of the central authority which the Constitution
sought to establish, the first thing that strikes us--in the teeth of
the assertion of most British and some American writers--is that it was
emphatically _not_ a copy of the British Constitution in any sense
whatever. It is built on wholly different principles, drawn mostly from
the French speculations of that age. Especially one notes, alongside of
the careful and wise separation of the judiciary from the executive, the
sound principle enunciated by Montesquieu and other French thinkers of
the eighteenth century, but rejected and contemned by England (to her
great hurt) as a piece of impracticable logic--the separation of the
executive and legislative powers. It was this principle which made
possible the later transformation of the Presidency into a sort of
Elective Monarchy.
This result was not designed or foreseen; or rather it was to an extent
foreseen, and deliberately though unsuccessfully guarded against. The
American revolutionists were almost as much under the influence of
classical antiquity as the French. From it they drew the noble
conception of "the Republic," the public thing acting with impersonal
justice towards all citizens. But with it they also drew an exaggerated
dread of what they called "Cæsarism," and with it they mixed the curious
but characteristic illusion of that age--an illusion from which, by the
way, Rousseau himself was conspicuously free--that the most satisfactory
because the most impersonal organ of the general will is to be found in
an elected assembly. They had as yet imperfectly learnt that such an
assembly must after all consist of persons, more personal because less
public than an acknowledged ruler. They did not know that, while a
despot may often truly represent the people, a Senate, however chosen,
always tends to become an oligarchy. Therefore they surrounded the
presidential office with checks which in mere words made the President
seem less powerful than an English King. Yet he has always in fact been
much more powerful. And the reason is to be found in the separation of
the executive from the legislature. The President, while his term
lasted, had the full powers of a real executive. Congress could not turn
him out, though it could in various ways check his actions. He could
appoint his own Ministers (though the Senate must ratify the choice) and
they were wisely excluded from the legislature. An even wiser provision
limited the appointment of Members of Congress to positions under the
executive. Thus both executive and legislature were kept, so far as
human frailty permitted, pure in their normal functions. The Presidency
remained a real Government. Congress remained a real check.
In England, where the opposite principle was adopted, the Ministry
became first the committee of an oligarchical Parliament and later a
close corporation nominating the legislature which is supposed to check
it.
The same fear of arbitrary power was exhibited, and that in fashion
really inconsistent with the democratic principles which the American
statesmen professed, in the determination that the President should be
chosen by the people only in an indirect fashion, through an Electoral
College. This error has been happily overruled by events. Since the
Electoral College was to be chosen _ad hoc_ for the single purpose of
choosing a President, it soon became obvious that pledges could easily
be exacted from its members in regard to their choice. By degrees the
pretence of deliberate action by the College wore thinner and thinner.
Finally it was abandoned altogether, and the President is now chosen, as
the first magistrate of a democracy ought to be chosen, if election is
resorted to at all, by the direct vote of the nation. At the time,
however, it was supposed that the Electoral College would be an
independent deliberative assembly. It was further provided that the
second choice of the Electoral College should be Vice-President, and
succeed to the Presidency in the event of the President dying during his
term of office. If there was a "tie" or if no candidate had an absolute
majority in the College, the election devolved on the House of
Representatives voting in this instance by States.
In connection with the election both of Executive and Legislature, the
old State Rights problem rose in another form. Were all the States to
have equal weight and representation, as had been the case in the old
Continental Congress, or was their weight and representation to be
proportional to their population? On this point a compromise was made.
The House of Representatives was to be chosen directly by the people on
a numerical basis, and in the Electoral College which chose the
President the same principle was adopted. In the Senate all States were
to have equal representation; and the Senators were to be chosen by the
legislatures of the States; they were regarded rather as ambassadors
than as delegates. The term of a Senator was fixed for six years, a
third of the Senate resigning in rotation every two years. The House of
Representatives was to be elected in a body for two years. The President
was elected for four years, at the end of which time he could be
re-elected.
Such were the main lines of the compromises which were effected between
the conflicting views of the extreme Federalists and extreme State Rights
advocates, and the conflicting interests of the larger and smaller States.
But there was another threatened conflict, more formidable and, as the
event proved, more enduring, with which the framers of the Constitution
had to deal. Two different types of civilization had grown up on opposite
sides of the Mason-Dixon line. How far Slavery was the cause and how far
a symptom of this divergence will be discussed more fully in future
chapters. At any rate it was its most conspicuous mark or label. North
and South differed so conspicuously not only in their social organization
but in every habit of life and thought that neither would tamely bear to
be engulfed in a union in which the other was to be predominant. To keep
an even balance between them was long the principal effort of American
statesmanship. That effort began in the Convention which framed the
Constitution. It did not cease till the very eve of the Civil War.
The problem with which the Convention had to deal was defined within
certain well-understood limits. No one proposed that Slavery should be
abolished by Federal enactment. It was universally acknowledged that
Slavery within a State, however much of an evil it might be, was an evil
with which State authority alone had a right to deal. On the other hand,
no one proposed to make Slavery a national institution. Indeed, all the
most eminent Southern statesmen of that time, and probably the great
majority of Southerners, regarded it as a reproach, and sincerely hoped
that it would soon disappear. There remained, however, certain definite
subjects of dispute concerning which an agreement had to be reached if
the States were to live in peace in the same household.
First, not perhaps in historic importance, but in the insistence of its
demand for an immediate settlement, was the question of representation.
It had been agreed that in the House of Representatives and in the
Electoral College this should be proportionate to population. The urgent
question at once arose: should free white citizens only be counted, or
should the count include the Negro slaves? When it is remembered that
these latter numbered something like half the population of the Southern
States, the immediate political importance of the issue will at once be
recognized. If they were omitted the weight of the South in the
Federation would be halved. In the opposite alternative it would be
doubled. By the compromise eventually adopted it was agreed that the
whole white population should be counted and three-fifths of the slaves.
The second problem was this: if Slavery was to be legal in one State and
illegal in another, what was to be the status of a slave escaping from a
Slave State into a free? Was such an act to be tantamount to an
emancipation? If such were to be the case, it was obvious that slave
property, especially in the border States, would become an extremely
insecure investment. The average Southerner of that period was no
enthusiast for Slavery. He was not unwilling to listen to plans of
gradual and compensated emancipation. But he could not be expected to
contemplate losing in a night property for which he had perhaps paid
hundreds of dollars, without even the hope of recovery. On this point it
was found absolutely necessary to give way to the Southerners, though
Franklin, for one, disliked this concession more than any other. It was
determined that "persons held to service or labour" escaping into
another State should be returned to those "to whom such service or
labour may be due."
The last and on the whole the least defensible of the concessions made
in this matter concerned the African Slave Trade. That odious traffic
was condemned by almost all Americans--even by those who were accustomed
to domestic slavery, and could see little evil in it. Jefferson, in the
original draft of the Declaration of Independence, had placed amongst
the accusations against the English King the charge that he had forced
the slave trade on reluctant colonies. The charge was true so far at
any rate as Virginia was concerned, for both that State and its
neighbour, Maryland, had passed laws against the traffic and had seen
them vetoed by the Crown. But the extreme South, where the cotton trade
was booming, wanted more Negro labour; South Carolina objected, and
found an expected ally in Massachusetts. Boston had profited more by the
Slave Trade than any other American city. She could hardly condemn King
George without condemning herself. And, though her interest in the
traffic had diminished, it had not wholly ceased. The paragraph in
question was struck out of the Declaration, and when the Convention came
to deal with the question the same curious alliance thwarted the efforts
of those who demanded the immediate prohibition of the trade. Eventually
the Slave Trade was suffered to continue for twenty years, at the end of
which time Congress might forbid it. This was done in 1808, when the
term of suffrance had expired.
Thus was Negro Slavery placed under the protection of the Constitution.
It would be a grave injustice to the founders of the American
Commonwealth to make it seem that any of them liked doing this.
Constrained by a cruel necessity, they acquiesced for the time in an
evil which they hoped that time would remedy. Their mind is
significantly mirrored by the fact that not once in the Constitution are
the words "slave" or "slavery" mentioned. Some euphemism is always used,
as "persons held to service or labour," "the importation of persons,"
"free persons," contrasted with "other persons," and so on. Lincoln,
generations later, gave what was undoubtedly the true explanation of
this shrinking from the name of the thing they were tolerating and even
protecting. They hoped that the Constitution would survive Negro
Slavery, and they would leave no word therein to remind their children
that they had spared it for a season. Beyond question they not only
hoped but expected that the concession which for the sake of the
national unity they made to an institution which they hated and deplored
would be for a season only. The influence of time and the growth of
those great doctrines which were embodied in the Declaration of
Independence could not but persuade all men at last; and the day, they
thought, could not be far distant when the Slave States themselves would
concur in some prudent scheme of emancipation, and make of Negro Slavery
an evil dream that had passed away. None the less not a few of them did
what they had to do with sorrowful and foreboding hearts, and the author
of the Declaration of Independence has left on record his own verdict,
that he trembled for his country when he remembered that God was just.