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CHAPTER IX. 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 of 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 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 defense, 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 favor 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 of 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, insure domestic tranquillity, provide for the common defense, 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 toward centralization, toward 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 endeavor 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 canvass. 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," etc. etc.
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 - 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 favor, 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 favor 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 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 offense and defense, 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 way 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 stumblingblock in the way.
But before we go into that matter of taxation, I must explain how the South was again favored with reference to its representation. As a matter of course no slaves, or even negroes - no men of color-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 colored 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 colored 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 labor!
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.
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 favor 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 unsavory 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 venal 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 honor, 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 honor. I am not a thorough democrat, and consider that more would be gained by obtaining in the legislature that education, demeanor, 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 Transatlantic anti-monarchical republicans who are endeavoring 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 honor 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 minds, even though the honor 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 legislature 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 seemed 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 reappear 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 exports. 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 endeavor 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 defense 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 that 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 reveled 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 Fouche, though luckily without a Fouche'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 awhile, 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 favor 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 attemped, 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 favor 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 mouth-piece 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 favor, 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 sets 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 offenses committed against the United States. He has no power to pardon an offense 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 twothirds 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 bureaus. 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 labor 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 labor; but shall be delivered up on claim of the party to whom such service or labor may be due." In speaking of a person held to labor 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 Slate 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, a 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 offenses except by indictment of a grand jury. They shall not be put twice in jeopardy for the same offense. 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 twenty dollars (4l.) 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 honored 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 AEneid 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 by-stander 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 clamor 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 honors 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 farther 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 clamor 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, 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 honored 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 honor.
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 its old dignity and former position is within its 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 saviour of the honor 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 endeavored 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 main-spring 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 pretense 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.
Turn to the next chapter: CHAPTER X. THE GOVERNMENT.