CHAPTER III

"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.

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