THE CONSTITUTION OF THE UNITED STATES.
It is, I presume, universally known that the citizens of the
Western American colonies of Great Britain which revolted, declared
themselves to be free from British dominion by an Act which they
called the Declaration of Independence. This was done on the 4th of
July, 1776, and was signed by delegates from the thirteen colonies,
or States as they then called themselves. These delegates in this
document declare themselves to be the representatives of the United
States of America in general Congress assembled. The opening
and close of this declaration have in them much that is grand
and striking; the greater part of it, however, is given up to
enumerating, in paragraph after paragraph, the sins committed by
George III. against the colonies. Poor George III.! There is no one
now to say a good word for him; but of all those who have spoken ill
of him, this declaration is the loudest in its censure.
In the following year, on the 15th November, 1777, were drawn up
the Articles of Confederation between the States, by which it was
then intended that a sufficient bond and compact should be made for
their future joint existence and preservation. A reference to this
document, which, together with the Declaration of Independence and
the subsequently framed Constitution of the United States, is given
in the Appendix, will show how slight was the then intended bond of
union between the States. The second article declares that each State
retains its sovereignty, freedom, and independence. The third article
avows that "the said States hereby severally enter into a firm league
of friendship with each other for their common defence, the security
of their liberties, and their mutual and general welfare, binding
themselves to assist each other against all force offered to, or
attacks made upon, them, or any of them, on account of religion,
sovereignty, trade, or any other pretext whatever." And the third
article, "the better to secure and perpetuate mutual friendship,"
declares that the free citizens of one State shall be free citizens
of another. From this it is, I think, manifest that no idea of one
united nation had at that time been received and adopted by the
citizens of the States. The articles then go on to define the way
in which Congress shall assemble and what shall be its powers. This
Congress was to exercise the authority of a national Government
rather than perform the work of a national Parliament. It was
intended to be executive rather than legislative. It was to consist
of delegates, the very number of which within certain limits was to
be left to the option of the individual States, and to this Congress
was to be confided certain duties and privileges, which could not
be performed or exercised separately by the Governments of the
individual States. One special article, the eleventh, enjoins that
"Canada, acceding to the Confederation, and joining in the measures
of the United States, shall be admitted into and entitled to all
the advantages of this Union; but no other colony shall be admitted
into the same unless such admission be agreed to by nine States." I
mention this to show how strong was the expectation at that time that
Canada also would revolt from England. Up to this day few Americans
can understand why Canada has declined to join her lot to them.
But the compact between the different States made by the Articles of
Confederation, and the mode of national procedure therein enjoined,
were found to be inefficient for the wants of a people who to be
great must be united in fact as well as in name. The theory of the
most democratic among the Americans of that day was in favour of
self-government carried to an extreme. Self-government was the Utopia
which they had determined to realize, and they were unwilling to
diminish the reality of the self-government of the individual States
by any centralization of power in one head, or in one Parliament, or
in one set of ministers for the nation. For ten years, from 1777 to
1787, the attempt was made; but then it was found that a stronger
bond of nationality was indispensable, if any national greatness
was to be regarded as desirable. Indeed, all manner of failure had
attended the mode of national action ordained by the Articles of
Confederation. I am not attempting to write a history of the United
States, and will not therefore trouble my readers with historic
details, which are not of value unless put forward with historic
weight. The fact of the failure is however admitted, and the present
written constitution of the United States, which is the splendid
result of that failure, was "Done in Convention by the unanimous
consent of the States present."* Twelve States were present,--Rhode
Island apparently having had no representative on the occasion,--on
the 17th September, 1787, and in the twelfth year of the Independence
of the United States.
*It must not, however, be supposed that by this "doing in
convention," the constitution became an accepted fact. It simply
amounted to the adoption of a proposal of the constitution.
The constitution itself was formally adopted by the people in
conventions held in their separate State capitals. It was agreed
to by the people in 1788, and came into operation in 1789.
I call the result splendid, seeing that under this constitution so
written a nation has existed for three quarters of a century and
has grown in numbers, power, and wealth till it has made itself the
political equal of the other greatest nations of the earth. And it
cannot be said that it has so grown in spite of the constitution, or
by ignoring the constitution. Hitherto the laws there laid down for
the national guidance have been found adequate for the great purpose
assigned to them, and have done all that which the framers of them
hoped that they might effect. We all know what has been the fate of
the constitutions which were written throughout the French revolution
for the use of France. We all, here in England, have the same
ludicrous conception of Utopian theories of government framed by
philosophical individuals who imagine that they have learned from
books a perfect system of managing nations. To produce such theories
is especially the part of a Frenchman; to disbelieve in them is
especially the part of an Englishman. But in the States a system of
government has been produced, under a written constitution, in which
no Englishman can disbelieve, and which every Frenchman must envy.
It has done its work. The people have been free, well-educated,
and politically great. Those among us who are most inclined at the
present moment to declare that the institutions of the United States
have failed, can at any rate only declare that they have failed in
their finality; that they have shown themselves to be insufficient to
carry on the nation in its advancing strides through all times. They
cannot deny that an amount of success and prosperity, much greater
than the nation even expected for itself, has been achieved under
this constitution and in connection with it. If it be so they cannot
disbelieve in it. Let those who now say that it is insufficient,
consider what their prophecies regarding it would have been had they
been called on to express their opinions concerning it when it was
proposed in 1787. If the future as it has since come forth had then
been foretold for it, would not such a prophecy have been a prophecy
of success? That constitution is now at the period of its hardest
trial, and at this moment one may hardly dare to speak of it with
triumph; but looking at the nation even in its present position, I
think I am justified in saying that its constitution is one in which
no Englishman can disbelieve. When I also say that it is one which
every Frenchman must envy, perhaps I am improperly presuming that
Frenchmen could not look at it with Englishmen's eyes.
When the constitution came to be written, a man had arisen in the
States who was peculiarly suited for the work in hand; he was one
of those men to whom the world owes much, and of whom the world in
general knows but little. This was Alexander Hamilton, who alone on
the part of the great State of New York signed the constitution of
the United States. The other States sent two, three, four, or more
delegates; New York sent Hamilton alone; but in sending him New York
sent more to the constitution than all the other States together. I
should be hardly saying too much for Hamilton if I were to declare
that all those parts of the constitution emanated from him in which
permanent political strength has abided. And yet his name has not
been spread abroad widely in men's mouths. Of Jefferson, Franklin,
and Madison, we have all heard; our children speak of them and they
are household words in the nursery of history. Of Hamilton however it
may, I believe, be said that he was greater than any of those.
Without going with minuteness into the early contests of democracy
in the United States, I think I may say that there soon arose two
parties, each probably equally anxious in the cause of freedom,
one of which was conspicuous for its French predilections, and the
other for its English aptitudes. It was the period of the French
revolution,--the time when the French revolution had in it as yet
something of promise, and had not utterly disgraced itself. To many
in America the French theory of democracy not unnaturally endeared
itself, and foremost among these was Thomas Jefferson. He was the
father of those politicians in the States who have since taken the
name of democrats, and in accordance with whose theory it has come to
pass that everything has been referred to the universal suffrage of
the people. James Madison, who succeeded Jefferson as President, was
a pupil in this school, as indeed have been most of the Presidents of
the United States. At the head of the other party, from which through
various denominations have sprung those who now call themselves
republicans, was Alexander Hamilton. I believe I may say that all the
political sympathies of George Washington were with the same school.
Washington, however, was rather a man of feeling and of action, than
of theoretical policy or speculative opinion. When the constitution
was written, Jefferson was in France, having been sent thither as
minister from the United States, and he therefore was debarred from
concerning himself personally in the matter. His views, however,
were represented by Madison, and it is now generally understood that
the Constitution, as it stands, is the joint work of Madison and
Hamilton.* The democratic bias, of which it necessarily contains
much, and without which it could not have obtained the consent of
the people, was furnished by Madison; but the conservative elements,
of which it possesses much more than superficial observers of the
American form of government are wont to believe, came from Hamilton.
*It should, perhaps, be explained that the views of Madison
were originally not opposed to those of Hamilton. Madison,
however, gradually adopted the policy of Jefferson,--his policy
rather than his philosophy.
The very preamble of the constitution at once declares that the
people of the different States do hereby join themselves together
with the view of forming themselves into one nation. "We, the
people of the United States, in order to form a more perfect Union,
establish justice, ensure domestic tranquillity, provide for the
common defence, promote the general welfare, and secure the blessings
of liberty to ourselves and our posterity, do ordain and establish
this constitution for the United States of America." Here a great
step was made towards centralization,--towards one national
government and the binding together of the States into one nation.
But from that time down to the present, the contest has been going
on, sometimes openly and sometimes only within the minds of men,
between the still alleged sovereignty of the individual States and
the acknowledged sovereignty of the central Congress and central
Government. The disciples of Jefferson,--even though they have
not known themselves to be his disciples,--have been carrying on
that fight for State rights which has ended in secession; and the
disciples of Hamilton,--certainly not knowing themselves to be his
disciples,--have been making that stand for central government, and
for the one acknowledged republic, which is now at work in opposing
secession, and which, even though secession should to some extent
be accomplished, will, we may hope, nevertheless, and not the less
on account of such secession, conquer and put down the spirit of
democracy.
The political contest of parties which is being waged now, and which
has been waged throughout the history of the United States, has
been pursued on one side in support of that idea of an undivided
nationality of which I have spoken,--of a nationality in which the
interests of a part should be esteemed as the interests of the whole;
and on the other side it has been pursued in opposition to that idea.
I will not here go into the interminable question of slavery,--though
it is on that question that the southern or democratic States have
most loudly declared their own sovereign rights and their aversion to
national interference. Were I to do so I should fail in my present
object of explaining the nature of the constitution of the United
States. But I protest against any argument which shall be used to
show that the constitution has failed because it has allowed slavery
to produce the present division among the States. I myself think that
the Southern or Gulf States will go. I will not pretend to draw the
exact line, or to say how many of them are doomed; but I believe that
South Carolina with Georgia, and perhaps five or six others, will be
extruded from the Union. But their very extrusion will be a political
success, and will, in fact, amount to a virtual acknowledgment in
the body of the Union of the truth of that system for which the
conservative republican party has contended. If the North obtain
the power of settling that question of boundary, the abandonment of
those southern States will be a success, even though the privilege of
retaining them be the very point for which the North is now in arms.
The first clause of the constitution declares that all the
legislative powers granted by the constitution shall be vested
in a Congress, which shall consist of a Senate and of a House of
Representatives. The House of Representatives is to be rechosen every
two years, and shall be elected by the people, such persons in each
State having votes for the national Congress as have votes for the
legislature of their own States. If therefore South Carolina should
choose--as she has chosen--to declare that the electors of her own
legislature shall possess a property qualification, the electors
of members of Congress from South Carolina must also have that
qualification. In Massachusetts universal suffrage now prevails,
although it is not long since a low property qualification prevailed
even in Massachusetts. It therefore follows that members of the House
of Representatives in Congress need by no means be all chosen on the
same principle. As a fact, universal suffrage* and vote by ballot,
that is by open voting papers, prevail in the States, but they do not
so prevail by virtue of any enactment of the constitution. The laws
of the States, however, require that the voter shall have been a
resident in the State for some period, and generally either deny
the right of voting to negroes, or so hamper that privilege that
practically it amounts to the same thing.
*Perhaps the better word would have been manhood suffrage;
and even that word should be taken with certain restrictions.
Aliens, minors, convicts, and men who pay no taxes cannot vote.
In some States none can vote unless they can read and write.
In some there is a property qualification. In all there are
special restrictions against negroes. There is in none an
absolutely universal suffrage. But I keep the name as it best
expresses to us in England the system of franchise which has
practically come to prevail in the United States.
The Senate of the United States is composed of two senators from each
State. These senators are chosen for six years, and are elected in a
manner which shows the conservative tendency of the constitution with
more signification than perhaps any other rule which it contains.
This branch of Congress, which, as I shall presently endeavour to
show, is by far the more influential of the two, is not in any way
elected by the people. "The Senate of the United States shall be
composed of two senators from each State, _chosen by the legislature
thereof_, for six years, and each senator shall have one voice."
The Senate sent to Congress is therefore elected by the State
legislatures. Each State legislature has two Houses; and the senators
sent from that State to Congress are either chosen by vote of the
two Houses voting together--which is, I believe, the mode adopted
in most States, or are voted for in the two Houses separately--in
which cases, when different candidates have been nominated, the
two Houses confer by committees and settle the matter between them.
The conservative purpose of the constitution is here sufficiently
evident. The intention has been to take the election of the senators
away from the people, and to confide it to that body in each State
which may be regarded as containing its best trusted citizens. It
removes the senators far away from the democratic element, and
renders them liable to the necessity of no popular canvas. Nor am I
aware that the constitution has failed in keeping the ground which it
intended to hold in this matter. On some points its selected rocks
and chosen standing ground have slipped from beneath its feet, owing
to the weakness of words in defining and making solid the intended
prohibitions against democracy. The wording of the constitution has
been regarded by the people as sacred; but the people has considered
itself justified in opposing the spirit as long as it revered the
letter of the constitution. And this was natural. For the letter
of the constitution can be read by all men; but its spirit can be
understood comparatively but by few. As regards the election of the
senators, I believe that it has been fairly made by the legislatures
of the different States. I have not heard it alleged that members
of the State legislatures have been frequently constrained by
the outside popular voice to send this or that man as senator to
Washington. It was clearly not the intention of those who wrote the
constitution that they should be so constrained. But the Senators
themselves in Washington have submitted to restraint. On subjects in
which the people are directly interested they submit to instructions
from the legislatures which have sent them as to the side on which
they shall vote, and justify themselves in voting against their
convictions by the fact that they have received such instructions.
Such a practice, even with the members of a House which has been
directly returned by popular election, is, I think, false to the
intention of the system. It has clearly been intended that confidence
should be put in the chosen candidate for the term of his duty,
and that the electors are to be bound in the expression of their
opinion by his sagacity and patriotism for that term. A member of
a representative House so chosen, who votes at the bidding of his
constituency in opposition to his convictions, is manifestly false to
his charge, and may be presumed to be thus false in deference to his
own personal interests, and with a view to his own future standing
with his constituents. Pledges before election may be fair, because
a pledge given is after all but the answer to a question asked. A
voter may reasonably desire to know a candidate's opinion on any
matter of political interest before he votes for or against him.
The representative when returned should be free from the necessity
of further pledges. But if this be true with a House elected by
popular suffrage, how much more than true must it be with a chamber
collected together as the Senate of the United States is collected!
Nevertheless it is the fact that many senators, especially those
who have been sent to the House as democrats, do allow the State
legislatures to dictate to them their votes, and that they do hold
themselves absolved from the personal responsibility of their
votes by such dictation. This is one place in which the rock which
was thought to have been firm has slipped away, and the sands of
democracy have made their way through. But with reference to this it
is always in the power of the Senate to recover its own ground, and
re-establish its own dignity; to the people in this matter the words
of the constitution give no authority, and all that is necessary for
the recovery of the old practice is a more conservative tendency
throughout the country generally. That there is such a conservative
tendency no one can doubt; the fear is whether it may not work too
quickly and go too far.
In speaking of these instructions given to senators at Washington,
I should explain that such instructions are not given by all States,
nor are they obeyed by all senators. Occasionally they are made in
the form of requests, the word "instruct" being purposely laid aside.
Requests of the same kind are also made to representatives, who, as
they are not returned by the State legislatures, are not considered
to be subject to such instructions. The form used is as follows: "We
instruct our senators and request our representatives," &c. &c.
The senators are elected for six years, but the same Senate does not
sit entire throughout that term. The whole chamber is divided into
three equal portions or classes, and a portion goes out at the end of
every second year; so that a third of the Senate comes in afresh with
every new House of Representatives. The Vice-President of the United
States, who is elected with the President, and who is not a senator
by election from any State, is the ex-officio President of the
Senate. Should the President of the United States vacate his seat
by death or otherwise, the Vice-President becomes President of the
United States; and in such case the Senate elects its own President
pro tempore.
In speaking of the Senate, I must point out a matter to which the
constitution does not allude, but which is of the gravest moment in
the political fabric of the nation. Each State sends two senators
to Congress. These two are sent altogether independently of the
population which they represent, or of the number of members which
the same State supplies to the Lower House. When the constitution
was framed, Delaware was to send one member to the House of
Representatives, and Pennsylvania eight; nevertheless, each of these
States sent two senators. It would seem strange that a young people,
commencing business as a nation on a basis intended to be democratic,
should consent to a system so directly at variance with the theory of
popular representation. It reminds one of the old days when Yorkshire
returned two members, and Rutlandshire two also. And the discrepancy
has greatly increased as young States have been added to the Union,
while the old States have increased in population. New York, with a
population of about 4,000,000, and with thirty-three members in the
House of Representatives, sends two senators to Congress. The new
State of Oregon, with a population of 50,000 or 60,000, and with one
member in the House of Representatives, sends also two senators to
Congress. But though it would seem that in such a distribution of
legislative power, the young nation was determined to preserve some
of the old fantastic traditions of the mother-country which it had
just repudiated; the fact, I believe, is that this system, apparently
so opposed to all democratic tendencies, was produced and specially
insisted upon by democracy itself. Where would be the State
sovereignty and individual existence of Rhode Island and Delaware,
unless they could maintain, in at least one House of Congress, their
State equality with that of all other States in the Union? In those
early days, when the constitution was being framed, there was nothing
to force the small States into a Union with those whose populations
preponderated. Each State was sovereign in its municipal system,
having preserved the boundaries of the old colony, together with the
liberties and laws given to it under its old colonial charter. A
union might be, and no doubt was, desirable; but it was to be a union
of sovereign States, each retaining equal privileges in that union,
and not a fusion of the different populations into one homogeneous
whole. No State was willing to abandon its own individuality, and
least of all were the small States willing to do so. It was therefore
ordained that the House of Representatives should represent the
people, and that the Senate should represent the States.
From that day to the present time the arrangement of which I am
speaking has enabled the democratic or southern party to contend
at a great advantage with the republicans of the North. When the
constitution was founded, the seven northern States--I call those
northern which are now free-soil States, and those southern in which
the institution of slavery now prevails--the seven northern States
were held to be entitled by their population to send thirty-five
members to the House of Representatives, and they sent fourteen
members to the Senate. The six southern States were entitled to
thirty members in the Lower House, and to twelve senators. Thus the
proportion was about equal for the North and South. But now,--or
rather in 1860, when secession commenced,--the northern States,
owing to the increase of population in the North, sent one hundred
and fifty representatives to Congress, having nineteen States and
thirty-eight senators; whereas the South, with fifteen States and
thirty senators, was entitled by its population to only ninety
representatives, although by a special rule in its favour, which
I will presently explain, it was in fact allowed a greater number
of representatives in proportion to its population than the North.
Had an equal balance been preserved, the South, with its ninety
representatives in the Lower House, would have but twenty-three
senators, instead of thirty, in the Upper.* But these numbers
indicate to us the recovery of political influence in the North,
rather than the pride of the power of the South; for the South,
in its palmy days, had much more in its favour than I have above
described as its position in 1860. Kansas had then just become a
free-soil State, after a terrible struggle, and shortly previous
to that Oregon and Minnesota, also free States, had been added to
the Union. Up to that date the slave States sent thirty senators to
Congress, and the free States only thirty-two. In addition to this
when Texas was annexed and converted into a State, a clause was
inserted into the Act giving authority for the future subdivision
of that State into four different States as its population should
increase, thereby enabling the South to add senators to its own party
from time to time, as the northern States might increase in number.
*It is worthy of note that the new northern and western States
have been brought into the Union by natural increase and the
spread of population. But this has not been so with the new
southern States. Louisiana and Florida were purchased, and Texas
was--annexed.
And here I must explain, in order that the nature of the contest may
be understood, that the senators from the South maintained themselves
ever in a compact body, voting together, true to each other,
disciplined as a party, understanding the necessity of yielding in
small things in order that their general line of policy might be
maintained. But there was no such system, no such observance of
political tactics among the senators of the North. Indeed, they
appear to have had no general line of politics, having been divided
among themselves on various matters. Many had strong southern
tendencies, and many more were willing to obtain official power by
the help of southern votes. There was no great bond of union among
them, as slavery was among the senators from the South. And thus,
from these causes, the power of the Senate and the power of the
Government fell into the hands of the southern party.
I am aware that in going into these matters here I am departing
somewhat from the subject of which this chapter is intended to treat;
but I do not know that I could explain in any shorter way the manner
in which those rules of the constitution have worked by which the
composition of the Senate is fixed. That State basis, as opposed to a
basis of population in the Upper House of Congress, has been the one
great political weapon, both of offence and defence, in the hands of
the democratic party. And yet I am not prepared to deny that great
wisdom was shown in the framing of the constitution of the Senate. It
was the object of none of the politicians then at work to create a
code of rules for the entire governance of a single nation such as
is England or France. Nor, had any American politician of the time
so desired, would he have had reasonable hope of success. A federal
union of separate sovereign States was the necessity, as it was also
the desire, of all those who were concerned in the American policy of
the day; and I think it may be understood and maintained that no such
federal union would have been just, or could have been accepted by
the smaller States, which did not in some direct way recognize their
equality with the larger States. It is moreover to be observed, that
in this, as in all matters, the claims of the minority were treated
with indulgence. No ordinance of the constitution is made in a
niggardly spirit. It would seem as though they who met together to
do the work had been actuated by no desire for selfish preponderance
or individual influence. No ambition to bind close by words which
shall be exacting as well as exact is apparent. A very broad power of
interpretation is left to those who were to be the future
interpreters of the written document.
It is declared that "Representation and direct taxes shall be
apportioned among the several States which may be included within
this Union according to their respective numbers," thereby meaning
that representation and taxation in the several States shall be
adjusted according to the population. This clause ordains that
throughout all the States a certain amount of population shall
return a member to the Lower House of Congress,--say one member to
100,000 persons, as is I believe about the present proportion,--and
that direct taxation shall be levied according to the number of
representatives. If New York return thirty-three members and Kansas
one, on New York shall be levied, for the purposes of the United
States' revenue, thirty-three times as much direct taxation as on
Kansas. This matter of direct taxation was not then, nor has it been
since, matter of much moment. No direct taxation has hitherto been
levied in the United States for national purposes. But the time has
now come when this proviso will be a terrible stumbling-block in the
way.
But before we go into that matter of taxation, I must explain how the
South was again favoured with reference to its representation. As a
matter of course no slaves, or even negroes--no men of colour--were
to vote in the southern States. Therefore, one would say, that
in counting up the people with reference to the number of the
representatives, the coloured population should be ignored
altogether. But it was claimed on behalf of the South that their
property in slaves should be represented, and in compliance with this
claim, although no slave can vote or in any way demand the services
of a representative, the coloured people are reckoned among the
population. When the numbers of the free persons are counted, to this
number is added "three-fifths of all other persons." Five slaves are
thus supposed to represent three white persons. From the wording,
one would be led to suppose that there was some other category into
which a man might be put besides that of free or slave! But it may
be observed, that on this subject of slavery the framers of the
constitution were tender-mouthed. They never speak of slavery or
of a slave. It is necessary that the subject should be mentioned,
and therefore we hear first of persons other than free, and then of
persons bound to labour!
Such were the rules laid down for the formation of Congress, and the
letter of those rules has, I think, been strictly observed. I have
not thought it necessary to give all the clauses, but I believe I
have stated those which are essential to a general understanding of
the basis upon which Congress is founded. A reference to the Appendix
will show all those which I have omitted.
The constitution ordains that members of both the Houses shall be
paid for their time, but it does not decree the amount. "The senators
and representatives shall receive a compensation for their services,
to be ascertained by law, and paid out of the Treasury of the United
States." In the remarks which I have made as to the present Congress
I have spoken of the amount now allowed. The understanding, I
believe, is that the pay shall be enough for the modest support of
a man who is supposed to have raised himself above the heads of the
crowd. Much may be said in favour of this payment of legislators,
but very much may also be said against it. There was a time when our
members of the House of Commons were entitled to payment for their
services, and when, at any rate, some of them took the money. It
may be that with a new nation such an arrangement was absolutely
necessary. Men whom the people could trust, and who would have been
able to give up their time without payment, would not have probably
been found in a new community. The choice of senators and of
representatives would have been so limited that the legislative power
would have fallen into the hands of a few rich men. Indeed it may be
said that such payment was absolutely necessary in the early days
of the life of the Union. But no one, I think, will deny that the
tone of both Houses would be raised by the gratuitous service of the
legislators. It is well known that politicians find their way into
the Senate and into the Chamber of Representatives solely with a
view to the loaves and fishes. The very word "politician" is foul
and unsavoury throughout the States, and means rather a political
blackleg than a political patriot. It is useless to blink this matter
in speaking of the politics and policy of the United States. The
corruption of the venial politicians of the nation stinks aloud in
the nostrils of all men. It behoves the country to look to this.
It is time now that she should do so. The people of the nation are
educated and clever. The women are bright and beautiful. Her charity
is profuse; her philanthropy is eager and true; her national ambition
is noble and honest,--honest in the cause of civilization. But she
has soiled herself with political corruption, and has disgraced the
cause of republican government by the dirt of those whom she has
placed in her high places. Let her look to it now. She is nobly
ambitious of reputation throughout the earth; she desires to be
called good as well as great; to be regarded not only as powerful,
but also as beneficent. She is creating an army; she is forging
cannon and preparing to build impregnable ships of war. But all these
will fail to satisfy her pride, unless she can cleanse herself from
that corruption by which her political democracy has debased itself.
A politician should be a man worthy of all honour, in that he loves
his country; and not one worthy of all contempt, in that he robs his
country.
I must not be understood as saying that every senator and
representative who takes his pay is wrong in taking it. Indeed, I
have already expressed an opinion that such payments were at first
necessary, and I by no means now say that the necessity has as yet
disappeared. In the minds of thorough democrats it will be considered
much that the poorest man of the people should be enabled to go into
the legislature, if such poorest man be worthy of that honour. I am
not a thorough democrat, and consider that more would be gained by
obtaining in the legislature that education, demeanour, and freedom
from political temptation which easy circumstances produce. I am not,
however, on this account inclined to quarrel with the democrats,--not
on that account if they can so manage their affairs that their poor
and popular politicians shall be fairly honest men. But I am a
thorough republican, regarding our own English form of government
as the most purely republican that I know, and as such I have a
close and warm sympathy with those trans-Atlantic anti-monarchical
republicans who are endeavouring to prove to the world that they have
at length founded a political Utopia. I for one do not grudge them
all the good they can do, all the honour they can win. But I grieve
over the evil name which now taints them, and which has accompanied
that wider spread of democracy which the last twenty years has
produced. This longing for universal suffrage in all things--in
voting for the President, in voting for judges, in voting for the
representatives, in dictating to senators, has come up since the days
of President Jackson, and with it has come corruption and unclean
hands. Democracy must look to it, or the world at large will declare
her to have failed.
One would say that at any rate the Senate might be filled with unpaid
servants of the public. Each State might surely find two men who
could afford to attend to the public weal of their country without
claiming a compensation for their time. In England we find no
difficulty in being so served. Those cities among us in which the
democratic element most strongly abounds, can procure representatives
to their mind--even though the honour of filling the position is not
only not remunerative, but is very costly. I cannot but think that
the Senate of the United States would stand higher in the public
estimation of its own country if it were an unpaid body of men.
It is enjoined that no person holding any office under the United
States shall be a member of either House during his continuance in
office. At first sight such a rule as this appears to be good in
its nature; but a comparison of the practice of the United States'
Government with that of our own makes me think that this embargo
on members of the legislative bodies is a mistake. It prohibits
the President's ministers from a seat in either House, and thereby
relieves them from the weight of that responsibility to which our
ministers are subjected. It is quite true that the United States'
ministers cannot be responsible as are our ministers, seeing that
the President himself is responsible and that the Queen is not so.
Indeed, according to the theory of the American constitution, the
President has no ministers. The constitution speaks only of the
principal officers of the executive departments. "He," the President,
"may require the opinion in writing of the principal officer in each
of the executive departments." But in practice he has his cabinet,
and the irresponsibility of that cabinet would practically cease
if the members of it were subjected to the questionings of the two
Houses. With us the rule which prohibits servants of the State from
going into Parliament is, like many of our constitutional rules, hard
to be defined, and yet perfectly understood. It may perhaps be said,
with the nearest approach to a correct definition, that permanent
servants of the State may not go into Parliament, and that those may
do so whose services are political, depending for the duration of
their term on the duration of the existing ministry. But even this
would not be exact, seeing that the Master of the Rolls and the
officers of the army and navy can sit in Parliament. The absence
of the President's ministers from Congress certainly occasions
much confusion, or rather prohibits a more thorough political
understanding between the executive and the legislative than now
exists. In speaking of the Government of the United States in the
next chapter, I shall be constrained to allude again to this
subject.*
*It will be alleged by Americans that the introduction into
Congress of the President's ministers would alter all the
existing relations of the President and of Congress, and would
at once produce that Parliamentary form of Government which
England possesses, and which the States have chosen to avoid.
Such a change would elevate Congress, and depress the President.
No doubt this is true. Such elevation, however, and such
depression seem to me to be the two things needed.
The duties of the House of Representatives are solely legislative.
Those of the Senate are legislative and executive--as with us those
of the Upper House are legislative and judicial. The House of
Representatives is always open to the public. The Senate is so open
when it is engaged on legislative work; but it is closed to the
public when engaged in executive session. No treaties can be made by
the President, and no appointments to high offices confirmed without
the consent of the Senate; and this consent must be given--as regards
the confirmation of treaties--by two-thirds of the members present.
This law gives to the Senate the power of debating with closed
doors upon the nature of all treaties, and upon the conduct of the
Government as evinced in the nomination of the officers of State.
It also gives to the Senate a considerable control over the foreign
relations of the Government. I believe that this power is often used,
and that by it the influence of the Senate is raised much above
that of the Lower House. This influence is increased again by the
advantage of that superior statecraft and political knowledge which
the six years of the senator gives him over the two years of the
representative. The tried representative, moreover, very frequently
blossoms into a senator; but a senator does not frequently fade into
a representative. Such occasionally is the case, and it is not even
unconstitutional for an ex-President to re-appear in either House.
Mr. Benton, after thirty years' service in the Senate, sat in the
House of Representatives. Mr. Crittenden, who was returned as senator
by Kentucky, I think seven times, now sits in the Lower House; and
John Quincy Adams appeared as a representative from Massachusetts
after he had filled the Presidential chair.
And, moreover, the Senate of the United States is not debarred from
an interference with money bills, as the House of Lords is debarred
with us. "All bills for raising revenue," says the seventh section
of the first article of the constitution, "shall originate with the
House of Representatives, but the Senate may propose or concur with
amendments as on other bills." By this the Senate is enabled to have
an authority in the money matters of the nation almost equal to that
held by the Lower House,--an authority quite sufficient to preserve
to it the full influence of its other powers. With us the House
of Commons is altogether in the ascendant, because it holds and
jealously keeps to itself the exclusive command of the public purse.
Congress can levy custom duties in the United States, and always has
done so; hitherto the national revenue has been exclusively raised
from custom duties. It cannot levy duties on imports. It can levy
excise duties, and is now doing so; hitherto it has not done so. It
can levy direct taxes, such as an income-tax and a property-tax; it
hitherto has not done so, but now must do so. It must do so, I think
I am justified in saying; but its power of doing this is so hampered
by constitutional enactment, that it would seem that the constitution
as regards this heading must be altered before any scheme can be
arranged by which a moderately just income-tax can be levied and
collected. This difficulty I have already mentioned, but perhaps it
will be well that I should endeavour to make the subject more plain.
It is specially declared, "That all duties, imposts, and excises
shall be uniform throughout the United States." And again, "That no
capitation or other direct tax shall be laid, unless in proportion
to the census or enumeration hereinbefore directed to be taken." And
again, in the words before quoted, "Representatives and direct taxes
shall be apportioned among the several States which shall be included
in this Union, according to their respective numbers." By these
repeated rules it has been intended to decree that the separate
States shall bear direct taxation according to their population and
the consequent number of their representatives; and this intention
has been made so clear, that no direct taxation can be levied in
opposition to it without an evident breach of the constitution. To
explain the way in which this will work, I will name the two States
of Rhode Island and Iowa as opposed to each other, and the two States
of Massachusetts and Indiana as opposed to each other. Rhode Island
and Massachusetts are wealthy Atlantic States, containing, as regards
enterprise and commercial success, the cream of the population of the
United States. Comparing them in the ratio of population, I believe
that they are richer than any other States. They return between them
thirteen representatives, Rhode Island sending two and Massachusetts
eleven. Iowa and Indiana also send thirteen representatives, Iowa
sending two, and being thus equal to Rhode Island; Indiana sending
eleven and being thus equal to Massachusetts. Iowa and Indiana are
western States; and though I am not prepared to say that they are
the poorest States of the Union, I can assert that they are exactly
opposite in their circumstances to Rhode Island and Massachusetts.
The two Atlantic States of New England are old established, rich,
and commercial. The two western States I have named are full of
new immigrants, are comparatively poor, and are agricultural.
Nevertheless any direct taxation levied on those in the East and
on those in the West must be equal in its weight. Iowa must pay as
much as Rhode Island; Indiana must pay as much as Massachusetts.
But Rhode Island and Massachusetts could pay without the sacrifice
of any comfort to its people, without any sensible suffering, an
amount of direct taxation which would crush the States of Iowa and
Indiana,--which indeed no tax-gatherer could collect out of those
States. Rhode Island and Massachusetts could with their ready money
buy Iowa and Indiana; and yet the income-tax to be collected from
the poor States is to be the same in amount as that collected from
the rich States. Within each individual State the total amount of
income-tax or of other direct taxation to be levied from that State
may be apportioned as the State may think fit; but an income-tax of
two per cent. on Rhode Island would probably produce more than an
income-tax of ten per cent. in Iowa; whereas Rhode Island could pay
an income-tax of ten per cent. easier than could Iowa one of two per
cent.
It would in fact appear that the constitution as at present framed is
fatal to all direct taxation. Any law for the collection of direct
taxation levied under the constitution would produce internecine
quarrel between the western States and those which border on the
Atlantic. The western States would not submit to the taxation. The
difficulty which one here feels is that which always attends an
attempt at finality in political arrangements. One would be inclined
to say at once that the law should be altered, and that as the money
required is for the purposes of the Union and for State purposes,
such a change should be made as would enable Congress to levy an
income-tax on the general income of the nation. But Congress cannot
go beyond the constitution.
It is true that the constitution is not final, and that it contains
an express article ordaining the manner in which it may be amended.
And perhaps I may as well explain here the manner in which this can
be done, although by doing so, I am departing from the order in which
the constitution is written. It is not final, and amendments have
been made to it. But the making of such amendments is an operation
so ponderous and troublesome, that the difficulty attached to any
such change envelops the constitution with many of the troubles of
finality. With us there is nothing beyond an act of parliament. An
act of parliament with us cannot be unconstitutional. But no such
power has been confided to Congress, or to Congress and the President
together. No amendment of the constitution can be made without
the sanction of the State legislatures. Congress may propose any
amendments, as to the expediency of which two-thirds of both Houses
shall be agreed; but before such amendments can be accepted they must
be ratified by the legislatures of three-fourths of the States, or
by conventions in three-fourths of the States, "as the one or the
other mode of ratification may be proposed by Congress." Or Congress,
instead of proposing the amendments, may, on an application from the
legislatures of two-thirds of the different States, call a convention
for the proposing of them. In which latter case the ratification by
the different States must be made after the same fashion as that
required in the former case. I do not know that I have succeeded
in making clearly intelligible the circumstances under which the
constitution can be amended; but I think I may have succeeded in
explaining that those circumstances are difficult and tedious. In a
matter of taxation why should States agree to an alteration proposed
with the very object of increasing their proportion of the national
burden? But unless such States will agree,--unless Rhode Island,
Massachusetts, and New York will consent to put their own necks into
the yoke,--direct taxation cannot be levied on them in a manner
available for national purposes. I do believe that Rhode Island and
Massachusetts at present possess a patriotism sufficient for such an
act. But the mode of doing the work will create disagreement, or at
any rate, tedious delay and difficulty. How shall the constitution be
constitutionally amended while one-third of the States are in revolt?
In the eighth section of its first article the Constitution gives
a list of the duties which Congress shall perform,--of things, in
short, which it shall do, or shall have power to do:--To raise taxes;
to regulate commerce and the naturalization of citizens; to coin
money and protect it when coined; to establish postal communication;
to make laws for defence of patents and copyrights; to constitute
national courts of law inferior to the Supreme Court; to punish
piracies; to declare war; to raise, pay for, and govern armies,
navies, and militia; and to exercise exclusive legislation in a
certain district which shall contain the seat of Government of the
United States, and which is therefore to be regarded as belonging to
the nation at large, and not to any particular State. This district
is now called the district of Columbia. It is situated on the Potomac
and contains the city of Washington.
Then the ninth section of the same article declares what Congress
shall not do. Certain immigration shall not be prohibited; _the
privilege of the writ of habeas corpus shall not be suspended_,
except under certain circumstances; no ex post facto law shall be
passed; no direct tax shall be laid unless in proportion to the
census; no tax shall be laid on exports; no money shall be drawn from
the treasury but by legal appropriation; no title of nobility shall
be granted.
The above are lists or catalogues of the powers which Congress has,
and of the powers which Congress has not; of what Congress may do,
and of what Congress may not do; and having given them thus seriatim,
I may here perhaps be best enabled to say a few words as to the
suspension of the privilege of the writ of habeas corpus in the
United States. It is generally known that this privilege has been
suspended during the existence of the present rebellion very many
times; that this has been done by the executive, and not by Congress;
and that it is maintained by the executive, and by those who defend
the conduct of the now acting executive of the United States, that
the power of suspending the writ has been given by the constitution
to the President, and not to Congress. I confess that I cannot
understand how any man, familiar either with the wording or with the
spirit of the constitution should hold such an argument. To me it
appears manifest that the executive, in suspending the privilege of
the writ without the authority of Congress, has committed a breach
of the constitution. Were the case one referring to our British
constitution, a plain man, knowing little of Parliamentary usage,
and nothing of law lore, would probably feel some hesitation in
expressing any decided opinion on such a subject, seeing that our
constitution is unwritten. But the intention has been that every
citizen of the United States should know and understand the rules
under which he is to live,--and he that runs may read.
As this matter has been argued by Mr. Horace Binney, a lawyer of
Philadelphia, much trusted, of very great and of deserved eminence
throughout the States, in a pamphlet in which he defends the
suspension of the privilege of the writ by the President, I will take
the position of the question as summed up by him in his last page,
and compare it with that clause in the constitution by which the
suspension of the privilege under certain circumstances is decreed;
and to enable me to do this I will, in the first place, quote the
words of the clause in question:--
"The privilege of the writ of habeas corpus shall not be suspended
unless when, in case of rebellion or invasion, the public safety may
require it." It is the second clause of that section which states
what Congress shall not do.
Mr. Binney argues as follows:--"The conclusion of the whole matter
is this: that the constitution itself is the law of the privilege,
and of the exception to it; that the exception is expressed in the
constitution, and that the constitution gives effect to the act of
suspension when the conditions occur; that the conditions consist of
two matters of fact,--one a naked matter of fact, and the other a
matter-of-fact conclusion from facts, that is to say, rebellion and
the public danger, or the requirement of public safety." By these
words Mr. Binney intends to imply that the constitution itself gave
the privilege of the writ of habeas corpus, and itself prescribes the
taking away of that privilege under certain circumstances. But this
is not so. The constitution does not prescribe the suspension of the
privilege of the writ under any circumstances. It says that it shall
not be suspended except under certain circumstances. Mr. Binney's
argument, if I understand it, then goes on as follows. As the
constitution prescribes the circumstances under which the privilege
of the writ shall be suspended, the one circumstance being the naked
matter-of-fact rebellion, and the other circumstance the public
safety supposed to have been endangered by such rebellion,--which Mr.
Binney calls a matter-of-fact conclusion from facts, the constitution
must be presumed itself to suspend the privilege of the writ. Whether
the President or Congress be the agent of the constitution in this
suspension is not matter of moment. Either can only be an agent,
and as Congress cannot act executively, whereas the President must
ultimately be charged with the executive administration of the
order for that suspension, which has in fact been issued by the
constitution itself, therefore the power of exercising the suspension
of the writ may properly be presumed to be in the hands of the
President, and not to be in the hands of Congress.
If I follow Mr. Binney's argument, it amounts to so much. But it
seems to me that Mr. Binney is wrong in his premises, and wrong in
his conclusion. The article of the constitution in question does not
define the conditions under which the privilege of the writ shall
be suspended. It simply states that this privilege shall never be
suspended, except under certain conditions. It shall not be suspended
unless when the public safety may require such suspension on account
of rebellion or invasion. Rebellion or invasion is not necessarily to
produce such suspension. There is indeed no naked matter of fact to
guide either President or Congress in the matter, and therefore I say
that Mr. Binney is wrong in his premises. Rebellion or invasion might
occur twenty times over, and might even endanger the public safety,
without justifying the suspension of the privilege of the writ
under the constitution. I say also that Mr. Binney is wrong in his
conclusion. The public safety must require the suspension before the
suspension can be justified, and such requirement must be a matter
for judgment, and for the exercise of discretion. Whether or no there
shall be any suspension is a matter for deliberation,--not one simply
for executive action, as though it were already ordered. There is no
matter-of-fact conclusion from facts. Should invasion or rebellion
occur, and should the public safety, in consequence of such rebellion
or invasion, require the suspension of the privilege of the writ,
then, and only then, may the privilege be suspended. But to whom
is the power, or rather the duty, of exercising this discretion
delegated? Mr. Binney says that "there is no express delegation of
the power in the constitution." I maintain that Mr. Binney is again
wrong, and that the constitution does expressly delegate the power,
not to the President, but to Congress. This is done so clearly, to my
mind, that I cannot understand the misunderstanding which has existed
in the States upon the subject. The first article of the constitution
treats "of the legislature." The second article treats "of the
executive." The third treats "of the judiciary." After that there
are certain "miscellaneous articles," so called. The eighth section
of the first article gives, as I have said before, a list of things
which the legislature or Congress shall do. The ninth section gives
a list of things which the legislature or Congress shall not do. The
second item in this list is the prohibition of any suspension of
the privilege of the writ of habeas corpus, except under certain
circumstances. This prohibition is therefore expressly placed upon
Congress, and this prohibition contains the only authority under
which the privilege can be constitutionally suspended. Then comes the
article on the executive, which defines the powers that the President
shall exercise. In that article there is no word referring to the
suspension of the privilege of the writ. He that runs may read.
I say, therefore, that Mr. Lincoln's Government has committed a
breach of the constitution in taking upon itself to suspend the
privilege;--a breach against the letter of the constitution. It has
assumed a power which the constitution has not given it,--which,
indeed, the constitution, by placing it in the hands of another body,
has manifestly declined to put into the hands of the executive;
and it has also committed a breach against the spirit of the
constitution. The chief purport of the constitution is to guard the
liberties of the people, and to confide to a deliberative body the
consideration of all circumstances by which those liberties may be
affected. The President shall command the army; but Congress shall
raise and support the army. Congress shall declare war. Congress
shall coin money. Congress, by one of its bodies, shall sanction
treaties. Congress shall establish such law courts as are not
established by the constitution. Under no circumstances is the
President to decree what shall be done. But he is to do those things
which the constitution has decreed or which Congress shall decree.
It is monstrous to suppose that power over the privilege of the
writ of habeas corpus would, among such a people, and under such a
constitution, be given without limit to the chief officer, the only
condition being that there should be some rebellion. Such rebellion
might be in Utah territory; or some trouble in the uttermost bounds
of Texas would suffice. Any invasion, such as an inroad by the
savages of Old Mexico upon New Mexico, would justify an arbitrary
President in robbing all the people of all the States of their
liberties! A squabble on the borders of Canada would put such a power
into the hands of the President for four years; or the presence of an
English frigate in the St. Juan channel might be held to do so. I say
that such a theory is monstrous.
And the effect of this breach of the constitution at the present day
has been very disastrous. It has taught those who have not been close
observers of the American struggle to believe that, after all, the
Americans are indifferent as to their liberties. Such pranks have
been played before high heaven by men utterly unfitted for the use
of great power, as have scared all the nations. Mr. Lincoln, the
President by whom this unconstitutional act has been done, apparently
delegated his assumed authority to his minister, Mr. Seward. Mr.
Seward has revelled in the privilege of unrestrained arrests, and has
locked men up with reason and without. He has instituted passports
and surveillance; and placed himself at the head of an omnipresent
police system with all the gusto of a Fouché, though luckily without
a Fouché's craft or cunning. The time will probably come when Mr.
Seward must pay for this,--not with his life or liberty, but with
his reputation and political name. But in the mean time his lettres
de cachet have run everywhere through the States. The pranks which
he played were absurd, and the arrests which he made were grievous.
After a while, when it became manifest that Mr. Seward had not found
a way to success, when it was seen that he had inaugurated no great
mode of putting down rebellion, he apparently lost his power in the
cabinet. The arrests ceased, the passports were discontinued, and the
prison-doors were gradually opened. Mr. Seward was deposed, not from
the cabinet, but from the premiership of the cabinet. The suspension
of the privilege of the writ of habeas corpus was not countermanded,
but the operation of the suspension was allowed to become less
and less onerous; and now, in April, 1862, within a year of the
commencement of the suspension, it has, I think, nearly died out.
The object in hand now is rather that of getting rid of political
prisoners, than of taking others.
This assumption by the government of an unconstitutional power has,
as I have said, taught many lookers-on to think that the Americans
are indifferent to their liberties. I myself do not believe that
such a conclusion would be just. During the present crisis the
strong feeling of the people--that feeling which for the moment has
been dominant--has been one in favour of the government as against
rebellion. There has been a passionate resolution to support the
nationality of the nation. Men have felt that they must make
individual sacrifices, and that such sacrifices must include a
temporary suspension of some of their constitutional rights. But I
think that this temporary suspension is already regarded with jealous
eyes;--with an increasing jealousy which will have created a reaction
against such policy as that which Mr. Seward has attempted, long
before the close of Mr. Lincoln's Presidency. I know that it is wrong
in a writer to commit himself to prophecies, but I find it impossible
to write upon this subject without doing so. As I must express a
surmise on this subject, I venture to prophesy that the Americans
of the States will soon show that they are not indifferent to the
suspension of the privilege of the writ of habeas corpus. On that
matter of the illegality of the suspension by the President I feel
in my own mind that there is no doubt.
The second article of the constitution treats of the executive, and
is very short. It places the whole executive power in the hands of
the President, and explains with more detail the mode in which the
President shall be chosen, than the manner after which the duties
shall be performed. The first section states that the executive
shall be vested in a President, who shall hold his office for four
years. With him shall be chosen a Vice-President. I may here explain
that the Vice-President, as such, has no power either political or
administrative. He is, ex officio, the speaker of the Senate; and
should the President die, or be by other cause rendered unable to
act as President, the Vice-President becomes President either for
the remainder of the Presidential term or for the period of the
President's temporary absence. Twice since the constitution was
written, the President has died and the Vice-President has taken
his place. No President has vacated his position, even for a period,
through any cause other than death.
Then come the rules under which the President and Vice-President
shall be elected,--with reference to which there has been an
amendment of the constitution subsequent to the fourth presidential
election. This was found to be necessary by the circumstances of the
contest between John Adams, Thomas Jefferson, and Aaron Burr. It was
then found that the complications in the method of election created
by the original clause were all but unendurable, and the constitution
was amended.
I will not describe in detail the present mode of election, as the
doing so would be tedious and unnecessary. Two facts I wish, however,
to make specially noticeable and clear. The first is, that the
President of the United States is now chosen by universal suffrage;
and the second is, that the constitution expressly intended that the
President should not be chosen by universal suffrage, but by a body
of men who should enjoy the confidence and fairly represent the will
of the people. The framers of the constitution intended so to write
the words, that the people themselves should have no more immediate
concern in the nomination of the President than in that of the
Senate. They intended to provide that the election should be made in
a manner which may be described as thoroughly conservative. Those
words, however, have been inefficient for their purpose. They have
not been violated. But the spirit has been violated, while the words
have been held sacred,--and the Presidential elections are now
conducted on the widest principles of universal suffrage. They are
essentially democratic.
The arrangement, as written in the constitution, is that each State
shall appoint a body of electors equal in number to the senators and
representatives sent by that State to Congress, and that thus a body
or college of electors shall be formed equal in number to the two
joint Houses of Congress, by which the President shall be elected. No
member of Congress, however, can be appointed an elector. Thus New
York, with thirty-three representatives in the Lower House, would
name thirty-five electors; and Rhode Island, with two members in the
Lower House, would name four electors;--in each case two being added
for the two senators.
It may perhaps be doubted whether this theory of an election by
electors has ever been truly carried out. It was probably the case
even at the election of the first Presidents after Washington, that
the electors were pledged in some informal way as to the candidate
for whom they should vote; but the very idea of an election by
electors has been abandoned since the Presidency of General Jackson.
According to the theory of the constitution the privilege and the
duty of selecting a best man as President was to be delegated to
certain best men chosen for that purpose. This was the intention of
those who framed the constitution. It may, as I have said, be doubted
whether this theory has ever availed for action; but since the days
of Jackson it has been absolutely abandoned. The intention was
sufficiently conservative. The electors to whom was to be confided
this great trust, were to be chosen in their own States as each State
might think fit. The use of universal suffrage for this purpose was
neither enjoined nor forbidden in the separate States,--was neither
treated as desirable or undesirable by the constitution. Each State
was left to judge how it would elect its own electors. But the
President himself was to be chosen by those electors and not by the
people at large. The intention is sufficiently conservative, but the
intention is not carried out.
The electors are still chosen by the different States in conformity
with the bidding of the constitution. The constitution is exactly
followed in all its biddings, as far as the wording of it is
concerned; but the whole spirit of the document has been evaded in
the favour of democracy, and universal suffrage in the Presidential
elections has been adopted. The electors are still chosen, it is
true; but they are only chosen as the mouthpiece of the people's
choice, and not as the mind by which that choice shall be made. We
have all heard of Americans voting for a ticket,--for the democratic
ticket, or the republican ticket. All political voting in the States
is now managed by tickets. As regards these Presidential elections,
each party decides on a candidate. Even this primary decision is
a matter of voting among the party itself. When Mr. Lincoln was
nominated as its candidate by the republican party, the names of no
less than thirteen candidates were submitted to the delegates who
were sent to a convention at Chicago, assembled for the purpose of
fixing upon a candidate. At that convention, Mr. Lincoln was chosen
as the republican candidate; and in that convention was in fact
fought the battle which was won in Mr. Lincoln's favour, although
that convention was what we may call a private arrangement, wholly
irrespective of any constitutional enactment. Mr. Lincoln was then
proclaimed as the republican candidate, and all republicans were held
as bound to support him. When the time came for the constitutional
election of the electors, certain names were got together in each
State as representing the republican interest. These names formed
the republican ticket, and any man voting for them voted in fact
for Lincoln. There were three other parties, each represented by a
candidate, and each had its own ticket in the different States. It
is not to be supposed that the supporters of Mr. Lincoln were very
anxious about their ticket in Alabama, or those of Mr. Breckinridge
as to theirs in Massachusetts. In Alabama, a democratic slave-ticket
would of course prevail. In Massachusetts, a republican free-soil
ticket would do so. But it may, I think, be seen that in this way
the electors have in reality ceased to have any weight in the
elections,--have in very truth ceased to have the exercise of any
will whatever. They are mere names, and no more. Stat nominis umbra.
The election of the President is made by universal suffrage, and not
by a college of electors. The words as they are written are still
obeyed; but the constitution in fact has been violated, for the
spirit of it has been changed in its very essence.
The President must have been born a citizen of the United States.
This is not necessary for the holder of any other office or for a
senator or representative; he must be thirty-four years old at the
time of his election.
His executive power is almost unbounded. He is much more powerful
than any minister can be with us, and is subject to a much lighter
responsibility. He may be impeached by the House of Representatives
before the Senate, but that impeachment only goes to the removal
from office and permanent disqualification for office. But in these
days, as we all practically understand, responsibility does not mean
the fear of any great punishment, but the necessity of accounting
from day to day for public actions. A leading statesman has but
slight dread of the axe, but is in hourly fear of his opponent's
questions. The President of the United States is subject to no such
questionings; and as he does not even require a majority in either
House for the maintenance of his authority, his responsibility sits
upon him very slightly. Seeing that Mr. Buchanan has escaped any
punishment for maladministration, no President need fear the anger
of the people.
The President is Commander-in-chief of the army and of the navy. He
can grant pardons,--as regards all offences committed against the
United States. He has no power to pardon an offence committed against
the laws of any State, and as to which the culprit has been tried
before the tribunals of that State. He can make treaties; but such
treaties are not valid till they have been confirmed by two-thirds
of the senators present in executive session. He appoints all
ambassadors and other public officers,--but subject to the
confirmation of the Senate. He can convene either or both Houses of
Congress at irregular times, and under certain circumstances can
adjourn them. His executive power is in fact almost unlimited; and
this power is solely in his own hands, as the constitution knows
nothing of the President's ministers. According to the constitution
these officers are merely the heads of his bureaux. An Englishman,
however, in considering the executive power of the President, and
in making any comparison between that and the executive power of
any officer or officers attached to the Crown in England, should
always bear in mind that the President's power, and even authority,
is confined to the Federal Government, and that he has none
with reference to the individual States. Religion, education, the
administration of the general laws which concern every man and
woman, and the real de facto Government which comes home to every
house;--these things are not in any way subject to the President of
the United States.
His legislative power is also great. He has a veto upon all acts of
Congress. This veto is by no means a dead letter, as is the veto
of the Crown with us; but it is not absolute. The President, if he
refuses his sanction to a bill sent up to him from Congress, returns
it to that House in which it originated, with his objections in
writing. If, after that, such bill shall again pass through both the
Senate and the House of Representatives, receiving in each House the
approvals of two-thirds of those present, then such bill becomes law
without the President's sanction. Unless this be done the President's
veto stops the bill. This veto has been frequently used, but no bill
has yet been passed in opposition to it.
The third article of the constitution treats of the judiciary of the
United States, but as I purpose to write a chapter devoted to the law
courts and lawyers of the States, I need not here describe at length
the enactments of the constitution on this head. It is ordained that
all criminal trials, except in cases of impeachment, shall be by
jury.
There are after this certain miscellaneous articles, some of which
belong to the constitution as it stood at first, and others of which
have been since added as amendments. A citizen of one State is to
be a citizen of every State. Criminals from one State shall not
be free from pursuit in other States. Then comes a very material
enactment:--"No person held to service or labour in one State, under
the laws thereof, escaping into another, shall, in consequence of any
law or regulation therein, be discharged from such service or labour;
but shall be delivered up on claim of the party to whom such service
or labour may be due." In speaking of a person held to labour the
constitution intends to speak of a slave, and the article amounts to
a fugitive slave law. If a slave run away out of South Carolina and
find his way into Massachusetts, Massachusetts shall deliver him up
when called upon to do so by South Carolina. The words certainly are
clear enough. But Massachusetts strongly objects to the delivery
of such men when so desired. Such men she has delivered up, with
many groanings and much inward perturbation of spirit. But it is
understood, not in Massachusetts only, but in the free-soil States
generally, that fugitive slaves shall not be delivered up by the
ordinary action of the laws. There is a feeling strong as that which
we entertain with reference to the rendition of slaves from Canada.
With such a clause in the constitution as that, it is hardly too much
to say that no free-soil State will consent to constitutional action.
Were it expunged from the constitution, no slave State would consent
to live under it. It is a point as to which the advocates of slavery
and the enemies of slavery cannot be brought to act in union. But on
this head I have already said what little I have to say.
New States may be admitted by Congress, but the bounds of no old
State shall be altered without the consent of such State. Congress
shall have power to rule and dispose of the territories and property
of the United States. The United States guarantee every State a
republican form of Government; but the constitution does not define
that form of Government. An ordinary citizen of the United States,
if asked, would probably say that it included that description of
franchise which I have called universal suffrage. Such, however, was
not the meaning of those who framed the constitution. The ordinary
citizen would probably also say that it excluded the use of a king,
though he would, I imagine, be able to give no good reason for saying
so. I take a republican government to be that in which the care of
the people is in the hands of the people. They may use an elected
President, an hereditary king, or a chief magistrate called by any
other name. But the magistrate, whatever be his name, must be the
servant of the people and not their lord. He must act for them and at
their bidding,--not they at his. If he do so, he is the chief officer
of a republic;--as is our Queen with us.
The United States' constitution also guarantees to each State
protection against invasion, and, if necessary, against domestic
violence,--meaning, I presume, internal violence. The words domestic
violence might seem to refer solely to slave insurrections; but such
is not the meaning of the words. The free State of New York would be
entitled to the assistance of the Federal Government in putting down
internal violence, if unable to quell such violence by her own power.
This constitution, and the laws of the United States made in
pursuance of it, are to be held as the supreme law of the land.
The judges of every State are to be bound thereby, let the laws
or separate constitution of such State say what they will to the
contrary. Senators and others are to be bound by oath to support
the constitution; but no religious test shall be required as a
qualification to any office.
In the amendments to the constitution, it is enacted that Congress
shall make no law as to the establishment of any religion, or
prohibiting the free exercise thereof; and also that it shall not
abridge the freedom of speech, or of the press, or of petition.--The
Government, however, as is well known, has taken upon itself to
abridge the freedom of the press.--The right of the people to bear
arms shall not be infringed. Then follow various clauses intended
for the security of the people in reference to the administration of
the laws. They shall not be troubled by unreasonable searches. They
shall not be made to answer for great offences except by indictment
of a grand jury. They shall not be put twice in jeopardy for the
same offence. They shall not be compelled to give evidence against
themselves. Private property shall not be taken for public use
without compensation. Accused persons in criminal proceedings shall
be entitled to speedy and public trial. They shall be confronted with
the witnesses against them, and shall have assistance of counsel.
Suits in which the value controverted is above 20 dollars (£4) shall
be tried before juries. Excessive bail shall not be required, nor
cruel and unusual punishments inflicted. In all which enactments
we see, I think, a close resemblance to those which have been
time-honoured among ourselves.
The remaining amendments apply to the mode in which the President and
Vice-President shall be elected, and of them I have already spoken.
The constitution is signed by Washington as President,--as President
and Deputy from Virginia. It is signed by deputies from all the
other States, except Rhode Island. Among the signatures is that of
Alexander Hamilton, from New York; of Franklin, heading a crowd in
Pennsylvania, in the capital of which State the convention was held;
and that of James Madison, the future President, from Virginia.
In the beginning of this chapter I have spoken of the splendid
results attained by those who drew up the constitution; and then, as
though in opposition to the praise thus given to their work, I have
insisted throughout the chapter both on the insufficiency of the
constitution and on the breaches to which it has been subjected.
I have declared my opinion that it is inefficient for some of its
required purposes, and have said that, whether inefficient or
efficient, it has been broken and in some degree abandoned. I
maintain, however, that in this I have not contradicted myself. A
boy, who declares his purpose of learning the Æneid by heart, will
be held as being successful if at the end of the given period he can
repeat eleven books out of the twelve. Nevertheless the reporter, in
summing up the achievement, is bound to declare that that other book
has not been learned. Under this constitution of which I have been
speaking, the American people have achieved much material success
and great political power. As a people they have been happy and
prosperous. Their freedom has been secured to them, and for a
period of seventy-five years they have lived and prospered without
subjection to any form of tyranny. This in itself is much, and
should, I think, be held as a preparation for greater things to
follow. Such, I think, should be our opinion, although the nation
is at the present burdened by so heavy a load of troubles. That any
written constitution should serve its purposes and maintain its
authority in a nation for a dozen years is in itself much for its
framers. Where are now the constitutions which were written for
France? But this constitution has so wound itself into the affections
of the people, has become a mark for such reverence and love, has,
after a trial of three quarters of a century, so recommended itself
to the judgment of men, that the difficulty consists in touching
it, not in keeping it. Eighteen or twenty millions of people who
have lived under it,--in what way do they regard it? Is not that
the best evidence that can be had respecting it? Is it to them an old
woman's story, a useless parchment, a thing of old words at which
all must now smile? Heaven mend them, if they reverence it more, as
I fear they do, than they reverence their Bible. For them, after
seventy-five years of trial, it has almost the weight of inspiration.
In this respect,--with reference to this worship of the work of their
forefathers, they may be in error. But that very error goes far to
prove the excellence of the code. When a man has walked for six
months over stony ways in the same boots, he will be believed when he
says that his boots are good boots. No assertion to the contrary from
any bystander will receive credence, even though it be shown that a
stitch or two has come undone, and that some required purpose has not
effectually been carried out. The boots have carried the man over his
stony roads for six months, and they must be good boots. And so I say
that the constitution must be a good constitution.
As to that positive breach of the constitution which has, as I
maintain, been committed by the present Government, although I have
been at some trouble to prove it, I must own that I do not think
very much of it. It is to be lamented, but the evil admits, I think,
of easy repair. It has happened at a period of unwonted difficulty,
when the minds of men were intent rather on the support of that
nationality which guarantees their liberties, than on the enjoyment
of those liberties themselves, and the fault may be pardoned if it
be acknowledged. But it is essential that it should be acknowledged.
In such a matter as that there should at any rate be no doubt. Now,
in this very year of the rebellion, it may be well that no clamour
against Government should arise from the people, and thus add to
the difficulties of the nation. But it will be bad, indeed, for the
nation if such a fault shall have been committed by this Government
and shall be allowed to pass unacknowledged, unrebuked,--as though
it were a virtue and no fault. I cannot but think that the time will
soon come in which Mr. Seward's reading of the constitution and Mr.
Lincoln's assumption of illegal power under that reading will receive
a different construction in the States than that put upon it by Mr.
Binney.
But I have admitted that the constitution itself is not perfect.
It seems to me that it requires to be amended on two separate
points;--especially on two; and I cannot but acknowledge that there
would be great difficulty in making such amendments. That matter
of direct taxation is the first. As to that I shall speak again in
referring to the financial position of the country. I think, however,
that it must be admitted, in any discussion held on the constitution
of the United States, that the theory of taxation as there laid down
will not suffice for the wants of a great nation. If the States are
to maintain their ground as a great national power, they must agree
among themselves to bear the cost of such greatness. While a custom
duty was sufficient for the public wants of the United States, this
fault in the constitution was not felt. But now that standing armies
have been inaugurated, that iron-clad ships are held as desirable,
that a great national debt has been founded, custom duties will
suffice no longer, nor will excise duties suffice. Direct taxation
must be levied, and such taxation cannot be fairly levied without a
change in the constitution. But such a change may be made in direct
accordance with the spirit of the constitution, and the necessity for
such an alteration cannot be held as proving any inefficiency in the
original document for the purposes originally required.
As regards the other point which seems to me to require amendment,
I must acknowledge that I am about to express simply my own opinion.
Should Americans read what I write, they may probably say that I
am recommending them to adopt the blunders made by the English in
their practice of government. Englishmen, on the other hand, may
not improbably conceive that a system which works well here under a
monarchy, would absolutely fail under a presidency of four years'
duration. Nevertheless I will venture to suggest that the government
of the United States would be improved in all respects, if the
gentlemen forming the President's cabinet were admitted to seats
in Congress. At present they are virtually irresponsible. They are
constitutionally little more than head clerks. This was all very well
while the Government of the United States was as yet a small thing;
but now it is no longer a small thing. The President himself cannot
do all, nor can he be, in truth, responsible for all. A cabinet, such
as is our cabinet, is necessary to him. Such a cabinet does exist,
and the members of it take upon themselves the honours which are
given to our cabinet ministers. But they are exempted from all that
parliamentary contact which, in fact, gives to our cabinet ministers
their adroitness, their responsibility, and their position in the
country. On this subject also I must say another word or two further
on.
But how am I to excuse the constitution on those points as to which
it has, as I have said, fallen through,--in respect to which it has
shown itself to be inefficient by the weakness of its own words?
Seeing that all the executive power is intrusted to the President, it
is especially necessary that the choice of the President should be
guarded by constitutional enactments;--that the President should be
chosen in such a manner as may seem best to the concentrated wisdom
of the country. The President is placed in his seat for four years.
For that term he is irremovable. He acts without any majority in
either of the legislative Houses. He must state reasons for his
conduct, but he is not responsible for those reasons. His own
judgment is his sole guide. No desire of the people can turn him out;
nor need he fear any clamour from the press. If an officer so high in
power be needed, at any rate the choice of such an officer should be
made with the greatest care. The constitution has decreed how such
care should be exercised, but the constitution has not been able to
maintain its own decree. The constituted electors of the President
have become a mere name; and that officer is chosen by popular
election, in opposition to the intention of those who framed the
constitution. The effect of this may be seen in the characters of the
men so chosen. Washington, Jefferson, Madison, the two Adamses, and
Jackson were the owners of names that have become known in history.
They were men who have left their marks behind them. Those in Europe
who have read of anything, have read of them. Americans, whether as
republicans they admire Washington and the Adamses, or as democrats
hold by Jefferson, Madison, and Jackson, do not at any rate blush for
their old Presidents. But who has heard of Polk, of Pierce, and of
Buchanan? What American is proud of them? In the old days the name
of a future President might be surmised. He would probably be a man
honoured in the nation; but who now can make a guess as to the next
President? In one respect a guess may be made with some safety. The
next President will be a man whose name has as yet offended no one by
its prominence. But one requisite is essential for a President; he
must be a man whom none as yet have delighted to honour.
This has come of universal suffrage; and seeing that it has come in
spite of the constitution, and not by the constitution, it is very
bad. Nor in saying this am I speaking my own conviction so much
as that of all educated Americans with whom I have discussed the
subject. At the present moment universal suffrage is not popular.
Those who are the highest among the people certainly do not love
it. I doubt whether the masses of the people have ever craved it.
It has been introduced into the Presidential elections by men called
politicians--by men who have made it a matter of trade to dabble
in state affairs, and who have gradually learned to see how the
constitutional law, with reference to the Presidential electors,
could be set aside without any positive breach of the constitution.*
*On this matter one of the best, and best informed Americans that
I have known told me that he differed from me. "It introduced
itself," said he. "It was the result of social and political
forces. Election of the President by popular choice became a
necessity." The meaning of this is, that in regard to their
Presidential elections the United States drifted into universal
suffrage. I do not know that his theory is one more comfortable
for his country than my own.
Whether or no any backward step can now be taken,--whether these
elections can again be put into the hands of men fit to exercise a
choice in such a matter,--may well be doubted. Facilis descensus
Averni. But the recovery of the downward steps is very difficult. On
that subject, however, I hardly venture here to give an opinion. I
only declare what has been done, and express my belief that it has
not been done in conformity with the wishes of the people,--as it
certainly has not been done in conformity with the intention of the
constitution.
In another matter a departure has been made from the conservative
spirit of the constitution. This departure is equally grave with the
other, but it is one which certainly does admit of correction. I
allude to the present position assumed by many of the senators, and
to the instructions given to them by the State legislatures, as to
the votes which they shall give in the Senate. An obedience on their
part to such instructions is equal in its effects to the introduction
of universal suffrage into the elections. It makes them hang upon the
people, divests them of their personal responsibility, takes away
all those advantages given to them by a six years' certain tenure of
office, and annuls the safety secured by a conservative method of
election. Here again I must declare my opinion that this democratic
practice has crept into the Senate without any expressed wish of
the people. In all such matters the people of the nation has been
strangely undemonstrative. It has been done as part of a system which
has been used for transferring the political power of the nation
to a body of trading politicians who have become known and felt as
a mass, and not known and felt as individuals. I find it difficult
to describe the present political position of the States in this
respect. The millions of the people are eager for the constitution,
are proud of their power as a nation, and are ambitious of national
greatness. But they are not, as I think, especially desirous of
retaining political influences in their own hands. At many of the
elections it is difficult to induce them to vote. They have among
them a half-knowledge that politics is a trade in the hands of the
lawyers, and that they are the capital by which those political
tradesmen carry on their business. These politicians are all lawyers.
Politics and law go together as naturally as the possession of land
and the exercise of magisterial powers do with us. It may be well
that it should be so, as the lawyers are the best educated men of the
country, and need not necessarily be the most dishonest. Political
power has come into their hands, and it is for their purposes and by
their influences that the spread of democracy has been encouraged.
As regards the Senate, the recovery of their old dignity and former
position is within their own power. No amendment of the constitution
is needed here, nor has the weakness come from any insufficiency of
the constitution. The Senate can assume to itself to-morrow its own
glories, and can, by doing so, become the saviours of the honour and
glory of the nation. It is to the Senate that we must look for that
conservative element which may protect the United States from the
violence of demagogues on one side and from the despotism of military
power on the other. The Senate, and the Senate only, can keep the
President in check. The Senate also has a power over the Lower House
with reference to the disposal of money, which deprives the House
of Representatives of that exclusive authority which belongs to our
House of Commons. It is not simply that the House of Representatives
cannot do what is done by the House of Commons. There is more than
this. To the Senate, in the minds of all Americans, belongs that
superior prestige, that acknowledged possession of the greater
power and fuller scope for action, which is with us as clearly the
possession of the House of Commons. The United States' Senate can be
conservative, and can be so by virtue of the constitution. The love
of the constitution in the hearts of all Americans is so strong that
the exercise of such power by the Senate would strengthen rather than
endanger its position. I could wish that the senators would abandon
their money payments, but I do not imagine that that will be done
exactly in these days.
I have now endeavoured to describe the strength of the constitution
of the United States, and to explain its weakness. The great question
is at this moment being solved, whether or no that constitution will
still be found equal to its requirements. It has hitherto been the
mainspring in the government of the people. They have trusted with
almost childlike confidence to the wisdom of their founders, and
have said to their rulers,--"There; in those words, you must find
the extent and the limit of your powers. It is written down for
you, so that he who runs may read." That writing down, as it were,
at a single sitting, of a sufficient code of instructions for the
governors of a great nation, had not hitherto in the world's history
been found to answer. In this instance it has, at any rate, answered
better than in any other, probably because the words so written
contained in them less pretence of finality in political wisdom than
other written constitutions have assumed. A young tree must bend, or
the winds will certainly break it. For myself I can honestly express
my hope that no storm may destroy this tree.