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THE AMERICAN CONSTITUTION AT THE PRESENT CRISIS. CAUSES OF THE CIVIL WAR IN AMERICA. - Walter Bagehot, The Works and Life of Walter Bagehot, vol. 3 (Historical & Literary Essays) 
The Works and Life of Walter Bagehot, ed. Mrs. Russell Barrington. The Works in Nine Volumes. The Life in One Volume. (London: Longmans, Green, and Co., 1915). Vol. 3.
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THE AMERICAN CONSTITUTION AT THE PRESENT CRISIS.
(National Review, October, 1861.)
It is not at first easy for an ordinary Englishman to appreciate adequately the favourite arguments which the most cultivated and best American writers use at the present juncture. It seems to him that they are arguments befitting lawyers, not arguments befitting statesmen. They appear only to prove that a certain written document, called the Constitution of the United States, expressly forbids the conduct which the Southern States are consistently pursuing, and that therefore such conduct is culpable as well as illegal. Very few Englishmen will deny either the premiss or the conclusion considered in themselves. It is certain that the Constitution does forbid what the slave States are doing; it is equally certain, that their policy is as mean, as unjustifiable, and every way as discreditable, as was ever pursued by any public bodies equally powerful and equally cultivated. But nevertheless an argument from the mere letter of a written Constitution will hardly convince any Englishman. He knows that all written documents must be very meagre; that the best of them must often be unsatisfactory; that most of them contain many errors; that the best of them are remarkable for strange omissions; that all of them will fail utterly when applied to a state of things different from any which its authors ever imagined. The complexity of politics is thoroughly comprehended by every Englishman—the complexity of our history has engraved it on our mind; the complexity of our polity is a daily memento of it—and no one in England will be much impressed by any arguments which tacitly assume that the limited clauses of an old State-paper can provide for all coming cases, and for ever regulate the future.
It is worth while, however, to examine the American Constitution at the present juncture. No remarkable aspect of the great events which are occurring among our nearest national kindred and our most important trading connexions in our own times, can be wisely neglected; and it will be easy to show that the Constitution of the United States is now failing from the necessary consequence of an inherent ineradicable defect; that more than one of its thoughtful framers perceived that it must fail under similar circumstances; and that the irremediable results of this latent defect have been aggravated partly by the corruptions which the Constitution has contracted in the progress of time, and yet more by certain elaborate provisions which were believed to be the best attainable safeguards against analogous dangers and difficulties.
Like most of the great products of the Anglo-Saxon race, the American Constitution was the result of a pressing necessity, and was a compromise between two extreme plans for meeting that necessity. It was framed in a time of gloom and confusion. The “revolted colonies,” as Englishmen then called them, had been successful in their revolt; but they had been successful in nothing else. They had thrown off the yoke of the English Government; but they had founded no efficient or solid government of their own. They had been united by a temporary common sentiment—by a common antipathy to the interference of the mother country; but the binding efficacy of that feeling ceased when their independence of the mother country had been definitely recognised. Nor was there any other strong bond of union which could supply its place. The American colonies had been founded by very different kinds of persons, at very different periods of English history. They had respectively taken the impress of the class of Englishmen who had framed them: Virginia had the mark of the aristocratic class; Massachusetts of the Puritan; Pennsylvania of the Quakers. The modern colonies of England are of a single type; they are founded by a single class, from a single motive. Those who now leave England are, with some exceptions, but still for the most part and as a rule, a rough and energetic race, who feel that they cannot earn as much money as they wish in England, and who hope and believe that they will be able to earn that money elsewhere. They are driven from home by the want of a satisfactory subsistence, and that subsistence is all they care or seek to find elsewhere. To every other class but this, England is too pleasant a residence for them to dream of leaving it for the antipodes. With our early colonies it was otherwise. When they were founded, England was a very unpleasant place for very many people. As long as the now-balanced structure of our composite society was in the process of formation, one class obtained a temporary ascendency at one time, and another class at another time. At each period they made England an uncomfortable place of residence for all who did not coincide in their notions of politics, and who would not subscribe to their tenets of religion. At such periods the dissident class threw off a swarm to settle in America; and thus our old colonies were first formed.
No one can be surprised that communities with such a beginning should have acquired strong antipathies to one another. Even at the present day, the antipathy of the inhabitants of South Carolina to the people of Boston, the dislike of Kentuckians to New Yorkers, has surprised attentive observers. But when their independence was first recognised, such feelings were infinitely more intense. The original founders of the colonies had hated one another at home. Those colonies were near neighbours in a rude country, and the occasional collision of petty interests had kept alive the original antipathy of each class to its antagonistic class, of each sect to its antagonistic sect. M. de Tocqueville remarked, that even in his time there was no national patriotism in America, but only a State patriotism; and though, in 1833, this remark was perhaps exaggerated, it would have been, fifty years before, only the literal expression of an indisputable fact. The name “American” had scarcely as yet any political signification—it was a “geographical expression”.
Grave practical difficulties of detail, too, oppressed the new community. The war with England had been commenced by a body calling itself a Congress, but very different from the elaborate and composite body which we now know by that name. It was a simple committee of delegates from the different States, which could recommend to those States whatever military measures it thought advisable, but had no greater power or function whatever. It was in no sense a government. It had no coercive jurisdiction, could compel nothing, and enforce nothing. It was an advising council, which had no resources of its own, and could only rely on its dignified position, and the obvious necessity of united opposition to the common enemy. But, as might be anticipated, so frail an organisation was entirely inadequate to the rough purposes of revolutionary warfare. It could not meet a pressing difficulty; and it did not meet it. It worked well when it was not wanted—when all the States were unanimous; but it was insufficient when the States began to disagree—at the very moment for which it was required.
The responsible leaders of the revolutionary struggle felt the necessity of a closer bond; and in March, 1781, nearly five years after the Declaration of Independence, the first real American Government was formed. It was called the Confederation, and was very simple in its structure. There was no complicated apparatus of President and Vice-president, such as we are now familiar with; no Supreme Court, no house of Representatives. The Confederation rather resembled what existed previously than what exists at present. There was, as before, a committee of delegates from the different States, and there was nothing else: this was the whole government; but this was not as before, simply a committee with powers of recommendation. It could by its own authority make peace and war, establish armies, contract debts, coin money, issue a paper currency, and send ambassadors to foreign nations. It could in theory, and according to its letter, perform all the ordinary acts and functions of sovereignty. It did, in fact, perform the greatest act of sovereignty, as a lawyer would reckon it, that could be conceived. By signing a peace with England, it secured its own existence. Being a loose aggregate of revolted colonies, it obtained a recognition by the mother country against which these colonies had revolted. In the face of Europe, and in the face of England more especially, it maintained the appearance of an organised, regular, and adequate government.
It really was, however, very inadequate. Some one has said that the true way to test the practical operation of any constitution is to ask, “How do you get money under it?” This is certainly an American mode of testing a polity, and according to this criterion the “perpetual Confederation” was an egregious failure. “You could not get dollars by means of it at all.” The national Congress could incur liabilities, but it could not impose taxation. It could, as we have explained, raise an army, contract a debt, issue a credit currency; but it could not of itself, and by its own authority, levy a penny. The States had retained in their own hands the exclusive power of imposing taxes. Congress could only require the several States to find certain quotas of money, and in the event of their not finding them could go to war with them. As a theorist would anticipate, the simplest alternative happened. The States did not find the money, and the Congress did not go to war with them. The debts of the Union were undischarged; the soldiers, even the French soldiers, who had achieved its independence, were unpaid; and the financial conditions of the Treaty of Independence with England were unfulfilled. Congress could do nothing, and the States would do nothing. Other smaller difficulties, too, were accumulating. The large unoccupied territory of the American continent required care; England was irritated at the non-completion or the infraction of several of the articles of peace; petty quarrels between the States on vexing minutiae were constantly beginning, and were rarely ending. The impotence of Congress was becoming proverbial, and the entire country was discouraged. In the correspondence of Washington and those around him it is evident that they asked themselves with doubt and despondency, “After all, will America be a nation?”
Two schemes floated in the public mind for remedying these evils. It was the opinion of some of the wisest American statesmen, and especially of Hamilton, the greatest political philosopher among them, that it would be better to establish an omnipotent Federal Government, which should be to America what the English Government was to England, which should have the full legislative, the full executive, the full judicial power which a sovereign government possesses in ordinary States.1
Hamilton proposed that the “supreme legislative power of the United States should be vested in two distinct bodies of men,” who should have power to pass all laws whatever, subject to a veto in a governor or first magistrate. For the choice of the members of these bodies, he would have divided the country into electoral districts, and no State as such would have elected a single representative to the united legislature, or have been capable of any function or voice in the Constitution of the Union. “All laws of the particular States contrary to the Constitution of the Union or laws of the United States were to be utterly void.” And “the better to prevent such laws being passed, the governor or president of each State” was to be appointed by the general Government, was to have a negative upon all laws “about to be passed therein”. No State was to have any forces, land or naval; and the militia of all the States were to be under the exclusive direction of the general Government of the United States, which alone was to appoint and commission their officers. In practice this scheme would have reduced the existing States to the condition of mere municipalities; they would have retained extensive powers of interior regulation, but they would have lost all the higher functions of government, all control over any matters not exclusively their own; they would have continued to be, so to say, County Boards for county matters, but they would have had no share in the sovereign direction of general affairs. They would have been as restricted, as isolated as the Corporations of Liverpool and Bristol are under the Constitution of England.
A theorist would perhaps be inclined to regret that some such plan as that of Hamilton was not eventually chosen. At the present moment political speculators in England are singularly inclined to schemes of political unity. The striking example of Italy has given a natural stimulus to them. We have seen a great nation which had long been divided combine into what, we hope, will be a permanent State at the bidding of a few able and active men, and, as it seems to the many, by a kind of political enchantment. The change, when regarded from a distance, has appeared so easy, that we underrate its real difficulties, and are inclined to erect one of the most exceptional events in history into an ordinary precedent and example. But the state of America eighty years since may easily show us why such events have been rare in history; why locality has been called an instinct in the human mind; why large States have almost always been produced by the constraining vigour of some single conquering power. Each of the States of North America was a little commonwealth, with a vigorous political life. Each one of them had its ministry, its opposition, its elections, its local questions; each had its own political atmosphere, each its peculiar ambitions. Even if the different States had been well disposed to one another, it would have been difficult to induce all of them—especially to induce the smaller among them—to give up this local political animation. The Italian States seem to have relinquished it; but, in truth, they had little to relinquish. They were despotically governed. None of them had within their own boundaries that vast accumulation of ideas and sentiments and hopes, of love and hatred, which we call a “political life”. The best men in Tuscany were not sacrificing a cherished career or an accustomed existence in favouring the expulsion of the Grand Duke; for so long as he remained they had no influence. After his expulsion the question of national unity or of local division could be considered fairly and impartially. It was not so in America: there were in every one of the States men who must have relinquished evident power, attainable proximate ambition—the dearest of ambitions, the power of governing the persons whom they had known all their lives, and with whom they had all their lives been in actual political competition—for the sake of an unknown “general government”; which was an abstraction which could have excited no living attachment, in which but a very few could take a prominent or gratifying share. Nor, as we have explained, were the different States mutually well disposed. The differences of their origin still embittered, and long seemed likely to embitter, the local squabbles of years. The saying of the Swiss Antifederalist, “My shirt is dearer to me than my coat!” was the animating spirit of nine-tenths of North America. The little State of Delaware refused even to consider the abolition of the fifth article of the Confederation, which preserved the separate existence and the primitive equality of the separate States by enacting that each should have one vote only. The plan of Hamilton could not be carried, and he was too wise a statesman to regard it as much better than a tempting dream.
The second extreme suggestion for amending the “perpetual Confederation” would have been equivalent in practice to a continuance of that Confederation very much as it was. Its theoretical letter proposed indeed to give additional powers to the Central Congress, but the States were to be still the component elements in the Constitution. The Congress was still to have no other power than that of requiring from these States what money it needed. It would still be compelled to declare war against them if that money was in arrear. It would still have been in the condition graphically delineated by a contemporary statesman: “By this political compact the United States in Congress have exclusive power for the following purposes without being able to execute one of them. They may make and conclude treaties; but can only recommend the observance of them. They may appoint ambassadors; but cannot defray even the expenses of their tables. They may borrow money in their own name on the faith of the Union; but cannot pay a dollar. They may coin money; but they cannot purchase an ounce of bullion. They may make war, and determine what number of troops are necessary, but cannot raise a single soldier. In short, they may declare everything, but do nothing.” Thus the second suggestion for remedying the pressing evils of America was as inefficient as the first had been impracticable.
The selected Constitution was a mean between the two. As the State Governments could not be abolished, and could not be entirely divested of their sovereign rights, a new Government was created, superior to them in certain specified matters, and having independent means of action with reference to those matters, but in all other things leaving their previous functions unrestricted, and their actual authority unimpaired. By the active Constitution the central Congress has the right of imposing certain specified revenues, and the power of collecting them throughout each State by officers of its exclusive appointment. It has, as under the Confederation, the power of making peace and proclaiming war—of engaging soldiers and contracting debts; but it now has likewise a power of collecting a revenue to remunerate those soldiers, and to pay those debts by its own authority, and without the consent of any subordinate body. It has not now to require obedience from the States in their corporate capacity, but to compel the obedience of individuals throughout those States in their natural isolation, and according to the ordinary custom of Governments.
We can now understand the answer of an American architect who was asked the difference between a Federation and Union. “Why,” he said, “a Federation is a Union with a top to it.” There is, in the United States, not simply an assemblage of individual sovereign States, but also a super-sovereign State, which has its officers side by side with theirs, its revenue side by side with theirs, its law-courts side by side with theirs, its authority on a limited number of enumerated points superior even to theirs. No political invention has been more praised than this one. It has been truly described as the most valuable addition to the resources of political philosophy ever made by professed constitution-makers. Greater things have grown up among great nations; studious thinkers have speculated on better devices; but nothing so remarkable was perhaps ever struck out on the impulse of the moment by persons actually charged with the practical duty of making a Constitution. American writers are naturally proud of it; and it would be easy to collect from European writers of eminence an imposing series of encomiums upon its excellence.
Yet now that we have before us the pointed illustration of recent events, it is not difficult to see that such an institution is only adapted to circumstances exceptionally favourable, and that under a very probable train of circumstances it must fail from inherent defect. It is essentially a collection of imperia in imperio. It rather displays than conceals the grave disadvantages which have made that name so very unpopular. Each State is a subordinate Republic, and yet the entire Union is but a single Republic. Each State is in some sense a centre of disunion. Each State attracts to itself a share of political attachment, has separate interests, real or supposed, has a separate set of public men anxious to increase its importance—upon which their own depends,—anxious to weaken the power of the United Government, by which theirs is overshadowed. At every critical period the sinister influence of the imperium in imperio will be felt; at every such period the cry of each subordinate aggregate will be, “Our interests are threatened, our authority diminished, our rights attacked”.
A presidential election is the very event of all others to excite these dangerous sentiments. It places the entire policy of the Union upon a single hazard. A particular moment is selected when the ruler for a term of years is to be chosen. That ruler has very substantial power of various kinds; he has immense patronage, a legislative veto, great executive authority, and, what is yet more to the present purpose, he has a supreme position in society, which indefinitely attracts his popular choice, and indefinitely aggravates the intensity of the canvass. A homogeneous and simple State, with no subordinate rivals within its frontiers, might well fear to encounter such a struggle. What, then, must be the certain result in a Federal Union whenever a large minority of the States should consider their rights and their interests to be identified with the election or with the rejection of any one presidential candidate? What can we anticipate when the greatest dividing force, the overt choice of a supreme ruler, after canvass and struggle and controversy, is applied to the most separable of political communities,—to a disjointed aggregate of States, whose local importance has been legally fostered, whose separate existence has been heedfully cherished, whose political vitality is older and more powerful than the bond of constitutional union? Surely, according to every canon of probability, we must confidently anticipate a separation whenever the sinister interest of a large and unconquerable section of the States shall be attacked, or be conceived to be attacked, by the selection of a supreme head for the whole nation. Independently of matters of detail, independently of the actual power which every supreme magistrate possesses, it is too much to expect that a considerable number of vigorous and active communities will, if they can help it, be governed by a person who is the symbol of the doctrine that they must hate and fear, and who is just elected by their special foes precisely because he is that symbol.
More than one of the most discerning of the framers of the American Constitution seems not only to have perceived the inherent defects of the work in which he had participated, but to have had a prevision of the real source from which ultimate danger was to be foreboded. Most of the controversies in the Convention which framed the Constitution had turned, in several forms, on the various consequences of the very different magnitude of the States which were about to join. The large States were anxious to be strong; the small States were fearful of being weak. But Mr. Madison, one of the most judicious men of that time, clearly perceived that, though this was naturally the principal difficulty in securing the voluntary adoption by the several States of any proposed Constitution, it would not be an equally menacing danger to the continuance of the Union when that Constitution was once established. The small States shrank from binding themselves to a Union, exactly because they felt that they must remain in it if they entered. If they once contracted to combine with stronger countries, the superior power of those countries would enforce an adherence to the bargain. The really formidable danger which threatened the American Union was the possibility of a difference of opinion between classes of States of which no one was immeasurably stronger than the other. This Madison saw. He observed:—
“I would always exclude inconsistent principles in framing a system of government. The difficulty of getting its defects amended are great, and sometimes insurmountable. The Virginia State government was the first which was made, and though its defects are evident to every person, we cannot get it amended. The Dutch have made four several attempts to amend their system without success. The few alterations made in it were by tumult and faction, and for the worse. If there was real danger, I would give the smaller States the defensive weapons; but there is none from that quarter. The great danger to our general government is the great Southern and Northern interests of the continent being opposed to each other. Look to the votes in Congress, and most of them stand divided by the geography of the country, not according to the size of the States.”
It was not, indeed, very difficult for the eye of a practised politician to discern the great diversity between the Northern and Southern societies. It was even then conspicuous to the eye of the least gifted observer. An accomplished French writer, whose essay was written before the perceptions of all of us were sharpened by recent events, has thus described it: “Au Sud, le sol appartenait à de grands propriétaires entourés d’esclaves et de petits cultivateurs. Les substitutions et le droit d’aînesse perpétuaient les richesses et le pouvoir dans une aristocratie qui occupait presque toutes les fonctions publiques. Le culte anglican était celui de l’État. La société et l’Église étaient constituées d’une façon hiérarchique Au Nord, au contraire, l’esprit d’égalité dans la société comme dans l’Église: ‘Je crains beaucoup les effets de cette diversité de moeurs et d’institutions,’ écrivait John Adams à Joseph Hawley, le 25 novembre 1775; ‘elle deviendra fatale si de part et d’autre on ne met beaucoup de prudence, de tolérance, de condescendance. Des changements dans les constitutions du Sud seront nécessaires si la guerre continue; ils pourront seuls rapprocher toutes les parties du continent.’ ” Probably, however, no one in those times anticipated the rapidity with which those differences would develop, for no one apprehended the practical working of slavery. Many persons unquestionably understood the immediate benefit with which it buys an insidious admission into uncultivated countries; but perhaps no one understood at how great price of ultimate evil that benefit would probably be purchased. No one could be expected to perceive that both the temporary benefit and the ultimate disadvantages resembled one another in being opposed to the continuance of the newly-formed Union; for even at the present day, and after a very painful experience, it is not steadily perceived by all of us.
Slavery is the one institution which effectually counteracts the assimilative force to which all new countries are subject,—that force which makes all men alike there, and which stamps upon the communities themselves so many common features. In such countries men are struggling with the wilderness; they are in daily conflict with the rough powers of nature, and from them they acquire a hardness and a roughness somewhat like their own. They cannot cultivate the luxuries of leisure, for they have no leisure. They must be mending their fences, or cooking their victuals, or mending their clothes. They cannot be expected to excel in the graces of refinement, for these require fastidious meditation and access to great examples, and neither of these are possible to hard-worked men at the end of the earth. A certain democracy in such circumstances rises like a natural growth of the soil. An even equality in mind and manners, if not in political institutions, is inevitably forced upon those whose character is pressed upon by the same rude forces, who have substantially the same difficulties, who lead in all material points the same life. All are struggling with the primitive difficulties of uncivilised existence, and all are retarded by that struggle at the same low level of instruction and refinement.
Slavery breaks this dead level, and it is the only available device that does so. The owner of a few slaves, partly employed in the service of his house and partly in the cultivation of his land, has a good deal of leisure, and is not exposed to any very brutalising temptation. It is his interest to treat his slaves well, and in ordinary circumstances he does treat them well. They give him the means of refinement, and the opportunities of culture: they receive from him good clothing, a protective surveillance, and some little moral improvement. Washington was such a slave-owner, and it is probable that at Mount Vernon what may be called the temptation of slavery presented itself in its strongest and most attractive form. At all events, it is certain that, by the irresistible influence of superior leisure and superior culture, the Virginian slave-owner acquired a singular pre-eminence in the revolutionary struggle, moved the bitter jealousy of all his contemporaries, and bestowed an indefinite benefit upon posterity. But even this beneficial effect of slavery, momentary as it was, was not beneficial to the Union as such: it did not strengthen, but weakened the uniting bond; it introduced an element of difference between State and State, which stimulated bitter envy, and suggested constant division. In the correspondence of the first race of Northern statesmen, a dangerous jealousy of the superior political abilities of the South is frequently to be traced.
The immense price, however, which has been paid for the short-lived benefit of slavery has been immeasurably more dangerous to the Union than the benefit itself. As we all perceive, it is tearing it in two. In the progress of time slave-owning becomes an investment of mercantile capital, and slaves are regarded, not as personal dependents, but as impersonal things. The necessities of modern manufacture require an immense production of raw material, and in certain circumstances slaves can be beneficially employed on a large scale to raise that material. The evils of slavery are developed at once. The owner of a few slaves whom he sees every day will commonly treat them kindly enough; but the owner of several gangs, on several different plantations, has no similar motive. His good feelings are not much appealed to in their favour; he does not know them by name, he does not know them by sight; they are to him instruments of production, which he bought at such and such a price, which cost so many dollars, which must be made to yield so many dollars. He is often brutalised by working them cruelly; he is still oftener brutalised in other ways by the infinite temptations which a large mass of subject men and subject women inevitably offer to tyranny and to lust. Nor in such a state of society does slavery monopolise the charm which at first attracted men to it. When large capitals have been accumulated, there will be without it sufficient opportunities for moderate leisure and for reasonable refinement. Slavery buys its admission with the attractions of Mount Vernon; it develops its awful consequences in lonely plantations on the banks of the Mississippi, whose owner wants cotton, and wants only cotton; where he himself, or some manager whom he pays, employs himself in brutalities to black men, and enjoys himself in brutalities to black women. The events of this year exhibit the result. The probable disunion of the South and the North is but the inevitable consequence of the existing moral contrast. It is not possible to retain in voluntary combination such a community as Massachusetts and communities whose ruling element is such a slavery as that we have described.
We see, therefore, from this brief survey, that we have no cause to wonder even at the almost magical consequences of Mr. Lincoln’s election. It was the sort of event which was most likely to produce such consequences. A Republic of United States which put up the first magistracy to periodical popular election, was most likely to part asunder when fundamental contrasts in character, ideas, and habits had long been growing rapidly between two very large classes of States, and when one of these classes persisted in electing to the first place in the Republic the very person who embodied the aim and tendencies most odious to the other class. It is evident, too, that the Northern and Southern States cannot hope to continue united under the present Constitution, or to form parts of the same Federal Republic under any Constitution whatever. No free State can rule an unwilling dependency of large size, except by excluding that dependency from all share in its own freedom. If Ireland unanimously wished to withdraw from the government of England, we could not rule it without excluding its representatives from Parliament. We know what the Irish members are now: we know that they are not very convenient; we know that they seem invented to give trouble, but who can imagine a House of Commons in which one hundred eager Irish members were united by a consistent intention to make an English Government impossible? who can imagine the Parliamentary consequences of so great a voting power, used not for the purposes of construction, but exclusively for those of destruction? who can suppose that during a series of years we could keep any firm administration at all with so powerful a force ever ready to combine with every one who desired to pull down, and never ready to combine with any one who wished to set up? Yet this is a faint example of what the American Congress would be with a regularly organised Southern opposition retained within the Union by force, but desirous to leave it, anxious to destroy it; never voting for any thing except with this object; never voting against anything save on that account. And such would be the inevitable result of the victory of the North. The Southern States are sure to preserve an intense local feeling for many years. History shows that they have always had it; the occupations and the habits of such bodies insure their having it. Even if the North were to conquer them now, their whole political force for many years would unquestionably be devoted to the attainment of disunion. Who can doubt that they would eventually obtain it by rendering all government impossible upon any lesser conditions? A free union is essentially voluntary. Sir Creswell Creswell may decree the restitution of matrimonial rights; but even he would not venture to decree the enforcement on an unwilling State of a promise to combine with another into a Parliamentary union.
Some of the framers of the American Constitution, as we have seen, foresaw its principal danger, and they did all which they could to provide against it. They erected a Supreme Court, a pre-eminent judicial tribunal, which is empowered to decide causes between State and State, and between any State and the Federal Government. And on many small, and on some important, matters, this Court has worked very well; it has given able if not always satisfactory, judgments on various points of State controversy; it has provided a tolerably fair umpire, and has thus prevented many small quæstiunculæ from growing into grave questions. It was excellent upon minor points; it has been useless upon the greatest. When, as recently, great passions have been aroused, great interests at stake, great issues clearly drawn out, a reference to the Supreme Court has not even been contemplated. No judicial establishment could, indeed, be useful in an extra-judicial matter; no law decide what is beyond the competence of law; no supplementary provision, however ingenious, cure the essential and inseparable defects of a Federal Union.
The steadily augmenting power of the lower orders in America has naturally augmented the dangers of their Federal Union. In almost all the States there was, at the time the Constitution of the Union was originally framed, a property qualification, in some States a high one, requisite for the possession of the most popular form of suffrage. Almost all these qualifications have now been swept away, and a dead level of universal suffrage runs, more or less, over the whole length of the United States. The external consequences, as we all know, have not been beneficial: the foreign policy of the Union has been a perplexing difficulty to European nations, and especially to England, for many years. Nor have the internal consequences been better. The most enthusiastic advocates of a democratic government will admit that it is both an impulsive and a contentious government. Its special characteristic is, that it places the entire control over the political action of the whole State in the hands of the common labourers, who are of all classes the least instructed—of all the most aggressive—of all the most likely to be influenced by local animosity—of all the most likely to exaggerate every momentary sentiment—of all the least likely to be capable of a considerable toleration for the constant oppositions of opinion, the not unfrequent differences of interests, and the occasional unreasonableness of other States. In democracies, local feuds are commonly more lasting and more bitter than in States of other kinds; and those enmities commonly become more bitter in proportion to the greater nearness of relation, the greater closeness of political connexion, and the greater contrast of disposition, temper, and internal circumstances. What intensity of bitterness was then to be anticipated in a so-called Union, in which two distinct sets of democracies—the Southern and the Northern, the slaveholding and the non-slaveholding—have been for many years augmenting in contrast to, and increasing in antipathy to, one another! The existing crisis is only the natural consequence, the inevitable development, of a long antagonism between these two species of Republics, in both of which the most intolerant members are absolute rulers, and each of which presented characteristics which the hidden instincts of the other, even more than its conscious opinion, regarded first as irritating and then as dangerous. The progress of democracy has affected not only the State Government, but the Federal Government. The House of Representatives in the latter is elected by the same persons who choose the most popular branch of the legislature in the former. As the State Governments have become more democratic, the Federal Government has inevitably become more so likewise. To this gradual corruption of the American democracy it is principally owing that Europe at large, and England especially, have not grieved much at the close proximity of its probable fall, but perhaps rejoiced at the prospect of some marked change from a policy which was so inconvenient to its neighbours, which must be attended to because its range was so wide, and the physical force under its direction was so large, but of which the events were mean, the actors base, and the working inexplicable. A low vulgarity, indefinable but undeniable, has deeply displeased the cultivated mind of Europe; and the American Union will fall, if it does fall, little regretted even by those whose race is akin, whose language is identical, whose weightiest opinions are on most subjects the same as theirs. The unpleasantness of mob government has never before been exemplified so conspicuously, for it never before has worked upon so large a scene.
These latter truths are very familiar. The evils of democracy and the dangers of democracy are great commonplaces in our speculation, though also formidable perils in our practice. But it is not commonplace to observe, that the existing crisis in America has been intensified almost as much by the precautions which the original founders of the Constitution took to ward off what they well knew to be the characteristic evils of democracy, as by those evils themselves. We have been so much accustomed to hear the “United States” extolled as the special land of democratic liberty, to hear their Constitution praised as the unmixed embodiment of uncontrolled popular power, that we have forgotten how many restrictive provisions that Constitution contains, and how anxiously its framers endeavoured to provide against the special defects of a purely popular polity.
It is not too much to say that a valuable addition to the accumulations of Conservative oratory might be extracted from the debates of the Convention which framed the American revolution. The two objects which its most intelligent framers were mainly bent on attaining were, security against the momentary caprice of a purely numerical majority, and some effective provision for the maintenance of a strong executive. What would Mr. Bright say to the following speech of Mr. Morris, not by any means the most conservative member of the Convention?—
“The two branches, so equally poised, cannot have their due weight. It is confessed, on all hands, that the second branch ought to be a check on the first; for without its having this effect it is perfectly useless. The first branch, originating from the people, will ever be subject to precipitancy, changeability, and excess. Experience evinces the truth of this remark, without having recourse to reading. This can only be checked by ability and virtue in the second branch. On your present system, can you suppose that one branch will possess it more than the other? The second branch ought to be composed of men of great and established property—an aristocracy; men who from pride will support consistency and permanency; and to make them completely independent, they must be chosen for life, or they will be a useless body. Such an aristocratic body will keep down the turbulency of democracy. But if you elect them for a shorter period, they will be only a name, and we had better be without them. Thus constituted, I hope they will show us the weight of aristocracy.
“History proves, I admit, that the men of large property will uniformly endeavour to establish tyranny. How, then, shall we ward off this evil? Give them the second branch, and you secure their weight for the public good. They become responsible for their conduct, and this lust of power will ever be checked by the democratic branch, and thus form a stability in your Government. But if we continue changing our measures by the breath of democracy, who will confide in our engagements? who will trust us? Ask any person whether he reposes any confidence in the Government of Congress, or that of the State of Pennsylvania; he will readily answer you, no. Ask him the reason; and he will tell you it is because he has no confidence in their stability.
“You intend also that the second branch shall be incapable of holding any office in the general Government. It is a dangerous expedient. They ought to have every inducement to be interested in your Government. Deprive them of this right, and they will become inattentive to your welfare. The wealthy will ever exist; and you never can be safe unless you gratify them as a body, in the pursuit of honour and profit. Prevent them by positive institutions, and they will proceed in some left-handed way. A son may want a place—you mean to prevent him from promotion. They are not to be paid for their services—they will in some way pay themselves; nor is it in your power to prevent it. It is good policy that men of property be collected in one body, to give them one common influence in your Government. Let vacancies be filled up, as they happen, by the executive. Besides it is of little consequence, on this plan, whether the States are equally represented or not. If the State Governments have the division of many of the loaves and fishes, and the General Government few, it cannot exist. This Senate would be one of the baubles of the general Government. If you choose them for seven years, whether chosen by the people or the States,—whether by equal suffrage or in any other proportion,—how will they be a check? They will still have local and State prejudices. A government by compact is no government at all. You may as well go back to your Congressional Federal Government, where, in the character of ambassadors, they may form treaties for each State. I avow myself the advocate of a strong Government.”
This speech, striking as it is, is only a single specimen, and not, in several respects, the most striking of many which might be cited. The predominant feeling of the predominant party in the Convention is clearly expressed in the singularly complicated provisions of the Constitution which they framed. Almost every clause of it bears witness to the anxiety of its composers for an efficient executive, and for an adequate guard against momentary popular feeling.
Unfortunately they either had not at their disposal, or did not avail themselves of, the only effectual instruments for either purpose. There is but one sufficient expedient against the tyranny of the lower orders, and that is to place the predominant (though not necessarily the exclusive) power in the hands of the higher orders. There must be some effectual sovereign authority in every government. In England, for example, the sovereign authority is the diffused respectable higher middle-class, which, on the whole, is predominant in the House of Commons, and in the Constituencies which return it. Whatever this class emphatically wills, is immediately enacted. It hears representations from the great mass of the orders which are below, it hears other and better expressed representations from the higher classes, which are above it. But it uses these only as materials by which to form a better judgment. If the House of Commons distinctly expresses an emphatic opinion, no other body or person or functionary hopes to oppose it, or dreams of doing so. Our security against tyranny is the reasonableness, the respectable cultivation, the business-like moderation of this governing class itself; if that class did not possess those qualities, the rest of the community would be always in danger, and very frequently be oppressed.
The framers of the American Constitution chose a very different expedient. They placed the predominant power in the hands of the numerical majority of the population, and hoped to restrain and balance it by paper checks and constitutional stratagems. At the present time, almost every one of their ingenious devices has aggravated the calamities of their descendants.
The mode in which the President of the United States is chosen is the most complicated which could well be imagined. A reader of the Constitution, uninformed as to the circumstances of its origin and the intentions of its framers, would imagine that complexity had sometimes been chosen as such, and for its own sake. Each, however, of these singular details was introduced with a very definite object.
“Each State,” it is provided, “shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the State may be entitled in the Congress; but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.
“The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each: which list they shall sign and certify, and transmit, sealed, to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates; and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then, from the five highest on the list, the said House shall in like manner choose the President. But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-president. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-president.
“The Congress may determine the time of choosing the electors, and the day on which they shall give their votes: which day shall be the same throughout the United States.”
“In pursuance of the authority given by the latter clause,” says Mr. Justice Story, “Congress in 1792 passed an act, declaring that the electors shall be appointed in each State within thirty-four days preceding the first Wednesday in December, in every fourth year succeeding the last election of President, according to the apportionment of representatives and senators then existing. The electors chosen are required to meet and give their votes on the first said Wednesday of December, in every fourth year succeeding the last election of President, according to the apportionment of representatives and senators then existing. The electors chosen are required to meet and give their votes on the said first Wednesday of December, at such place in each State as shall be directed by the legislature thereof. They are then to make and sign three certificates of all the votes by them given, and to seal up the same, certifying on each that a list of the votes of such State for President and Vice-president is contained therein; and shall appoint a person to take charge of and deliver one of the same certificates to the President of the Senate at the seat of Government, before the first Wednesday of January then next ensuing; another of the certificates is to be forwarded forthwith by the post-office to the President of the Senate at the seat of Government; and the third is to be delivered to the judge of the district in which the electors assembled. Other auxiliary provisions are made by the same act for the due transmission and preservation of the electoral votes, and authenticating the appointment of the electors. The President’s term of office is also declared to commence on the fourth day of March next succeeding the day on which the votes of the electors shall be given.”
The details of these arrangements are involved, but their purpose was simple. The framers wished the President to be chosen, not by the primary electors, but by a body of secondary electors, whom the primary were to choose, because they thought that these chosen choosers would presumably be persons especially likely to make a good choice. They likewise intended that an absolute majority (a majority, that is, of more than one-half of the total number) should be requisite for a valid election; and if such majority could not be procured, that the House of Representatives, voting by States, should make the choice (in which case an absolute majority of all the States was likewise to be necessary); and lastly, they wished that an interval of many months—from November in one year to March in the next—should be secured for the safe transaction of the entire election.
Every part of this well-studied arrangement has produced most unanticipated results, and none more so than the last part. Nothing could be more reasonable than the regulation that a long interval should be provided for the whole complicated election; since, if the choice unexpectedly lapsed to the House of Representatives, much delay and consideration would obviously be necessary. But the consequences have been disastrous.
“At the outset of the quarrel,” observes a recent writer, “the Constitution occasioned a needless danger. The South threatened to secede because Mr. Lincoln had been elected President. Under almost any other free Constitution which has ever existed, and certainly under every good one, the executive authority, whose function it was to oppose secession, would have been placed exclusively in the hands of those who were desirous so to oppose it. At an instant of violent irritation, the dissentient minority were anxious to break loose from the control of the majority. The majority were at that time, whatever may be the case now, by no means fanatical, or irritated, or overbearing. They wished to preserve the Union, and under a well-framed constitution they would have had the power of using the force of the State to preserve the State. But not so under the American. An artificial arrangement prolongs the reign of each President many months after the election of his successor. In consequence, the executive authority was, during a considerable and critical interval, in the hands of those who by birth, habit, and sympathy were leagued with the dissentient minority. Mr. Buchanan and his ministers had always been attached to the party of the South, and were the last persons to act decisively against it. It is the opinion of many well-informed persons that there was a sufficient Unionist party in several of the seceding States to have prevented the present movement there, if the Federal Government had acted with vigour and celerity. And, whether this be so or not, it remains a singular defect in the working of the American Constitution, that it gave power at the decisive moment to those least likely to use that power well—that just when a revolt was impending, it placed the whole executive influence and the whole military force in the unfettered hands of the political associates of the revolters.”
It is now known that the Southern officials, purposely distributed the fleet of the Union in distant countries, placed stores of artillery where Southern rebels could easily take them, purposely disorganised the Federal army. Nothing else could be anticipated from an arrangement which placed the preparations for maintaining the Union in the exclusive control of the persons desirous to break the Union.
The scheme, too, of a double election has failed of its intended effect; but has produced grave effects which were not intended. The same writer observes:
“Nor does the accession of Mr. Lincoln place the executive power precisely where we should wish to see it. At a crisis such as America has never before seen, and as it is not, perhaps, probable she will see again, the executive authority should be in the hands of one of the most tried, trusted, and experienced statesmen of the nation. Mr. Lincoln is a nearly unknown man, who has been but little heard of, who has had little experience, who may have nerve and judgment, or may not have them, whose character, both moral and intellectual, is an unknown quantity, who must, from his previous life and defective education, be wanting in the liberal acquirements and mental training which are principal elements of an enlarged statesmanship. Nor is it true to say that the American people are to blame for this—that they chose Mr. Lincoln, and must endure the pernicious results. The Constitution is as much to blame as the people, probably even more so. The framers were wisely and warmly attached to the principles of liberty, and, like all such persons, were extremely anxious to guard against momentary gusts of popular opinion. They were especially desirous that the President to whom they were intrusting vast power should be the representative, not of a small section of the community, but of a really predominant part of it. They not only established a system of double election, in the hope that the ‘electoral college’ (of which the electors were chosen by the primary electors in each State) would exercise a real discretion in the choice of President, and be some check on popular ignorance and low violence, but they likewise provided that an absolute majority of that ‘electoral college’ (a majority, that is, greater than one-half of the whole) should give their votes for the elected candidate. The effect has been painfully different from the design. In reality, the ‘electoral college’ exercises no choice; every member of it is selected by the primitive constituency because he will vote for a certain presidential candidate (for Mr. Lincoln or Mr. Douglas, and so on), and he does nothing but vote accordingly. The provision requiring the consent of an absolute majority has had a still worse effect; it has not been futile, for it has been pernicious. It has made it very difficult to secure any election.”1
If every candidate stood who wished, and every elector voted for whom he pleased, there would be no election at all. Each little faction would vote for its own particular favourite, and no one would obtain the votes of half the whole nation. A very complicated apparatus of preliminary meetings, called caucuses, is therefore resorted to, and the working of these is singularly disastrous.
Every man of any mark in the whole nation has many enemies, some private, some public; he is probably the head of some section or minor party, and that minor party has its own antagonists, its special opponents, who would dislike more than anything else that its head should on a sudden become the head of the State. Every statesman who has been long tried in public life must have had to alienate many friends, to irritate many applicants by necessary refusals, to say many things which are rankling in many bosoms. Every great man creates his own opposition; and no great man, therefore, will ever be President of the United States, except in the rarest and most exceptional cases. The object of “President makers” is to find a candidate who will conciliate the greatest number, not the person for whom there is most to be said, but the person against whom there is least to be said. In the English State, there is no great office filled in at all the same way; but in the English Church there is. “Depend on it,” said a shrewd banker, not remarkable for theological zeal or scholastic learning, “I would have been Archbishop of Canterbury, if I had been in the Church. Some quiet, tame sort of man is always chosen; and I never give offence to any one.” If he did not, he might have been President of the United States. The mode in which all conspicuous merit is gradually eliminated from the list of candidates was well illustrated at the election of Mr. Pierce.
“The candidates on the democratic side were no less than eight: General Cass, Mr. Buchanan, Mr. Douglas, Mr. Marcy, Mr. Butler, Mr. Houston, Mr. Lane, and Mr. Dickenson; all men ‘prominently known to their party,’ and the three first supported with great enthusiasm by large sections of that party throughout the Union.
“The Convention appointed by the democratic party in each State to decide which among these various candidates should be recommended for their votes at the election, assembled at Baltimore for their first meeting on the 1st of June, 1852. On that day General Cass obtained the greatest number of votes at the first ballot, namely 116, out of the total of 288; but a number far below the requisite majority. A few specimens of the manner in which the votes fluctuated will not be without interest. On the ninth ballot the votes were—Cass, 112; Buchanan, 87; Douglas, 39; Marcy, 28; Butler, 1; Houston, 8; Lane, 13; Dickenson, 1. On the twenty-second ballot—Cass, 33; Douglas, 80; Butler, 24; Lane, 11; Buchanan, 101; Marcy, 25; Housten, 10; Dickenson, 1. On the twenty-ninth ballot—Cass, 27. On the thirty-fifth ballot—Cass, 131; Douglas, 52; Buchanan, 32.
“On this, the sixth day of the meeting (the proceedings of and the scenes in which were fully and somewhat graphically described by the public press of both parties), a new name appeared for the first time upon the lists—that of Mr. Pierce, of New Hampshire, a gentleman well known to his friends as a lawyer of ability; also as having creditably fulfilled the duties of a member of the House of Representatives, and of the Senate of the United States; better known, however, as having joined the army as a volunteer on the breaking out of the Mexican War, and as having commanded with distinction a brigade in that war, with the rank of General. It will, nevertheless, imply no disrespect towards Mr. Pierce, if I repeat what was the universal expression, according to the public prints, throughout the Union, that no individual in the United States could have been more surprised at Mr. Pierce’s nomination for the exalted and responsible office of chief magistrate of the Republic than Mr. Pierce himself. On the thirty-fifth ballot, the first in which Mr. Pierce’s name appeared, he received 15 votes. On the forty-eight, he received only 55 votes; but on the forty-ninth, the numbers voting for him were 283, out of the total of 288—a vote which five more would have made unanimous.
“Mr. Pierce was accordingly recommended to the democratic Constituencies throughout the Union, and was elected by a considerable majority over his Whig opponent; the numbers being, for Mr. Pierce 1,504,471, and for General Scott 1,283,174.”
What worse mode of electing a ruler could by possibility have been selected? If the wit of man had been set to devise a system specially calculated to bring to the head of affairs an incompetent man at a pressing crisis, it could not have devised one more fit; probably it would not have devised one as fit. It almost secures the rejection of tried and trained genius, and almost insures the selection of untrained and unknown mediocrity.
Nor is this the only mode, or even the chief mode, in which the carefully considered provisions of the American Constitution have, in fact, deprived the American people of the guidance and government of great statesmen, just when these were most required. It is not too much to say that, under the American Constitution, there was no opportunity for a great statesman. As we have seen, he had no chance of being chosen President, the artificial clauses of the Constitution, and the natural principles of human nature, have combined to prevent that. Nor is it worth a great man’s while to be a President’s minister. This is not because such a minister would be in apparent subordination to the President, who would probably be an inferior man to him—for able men are continually ready to fill subordinate posts under constitutional monarchs, who are usually very inferior men, and even under colonial governors, who are rather inferior men—but because a President’s minister has no parliamentary career. As we know, the first member of the Crown is with us the first man in Parliament, and is the ruler of the English nation. In those English colonies which possess popular constitutions, the first minister is the most powerful man in the State—far more powerful than the so-called governor. He is so because he is the accepted leader of the colonial Parliament. In consequence, whenever the English nation, or a free English colony, is in peril, the first man in England, or in the colony, at least the most trusted man is raised at once to the most powerful place in the nation. On the Continent of Europe, the advantage of this insensible machinery is just beginning to be understood. Count Cavour well knew and thoroughly showed how far the power of a parliamentary Premier, supported by a willing and confiding parliament, is superior to all other political powers, whether in despotic governments or in free. The American Constitution, however, expressly prohibits the possibility of such a position. It enacts, “That no person holding any office under the United States shall be a member of either House during his continuance in office”. In consequence, the position of a great parliamentary member who is responsible more or less for the due performance of his own administrative functions, and also of all lesser ones, is in America an illegal one. If a politician has executive authority, he cannot enter Parliament; if he is in Parliament, he cannot possess executive authority. No man of great talents and high ambition has therefore under the Constitution of the United States a proper sphere for those talents, or a suitable vista for that ambition. He cannot hope to be President, for the President is ex officio a poor creature; he cannot hope to be, mutatis mutandis, an English Premier, to be a Sir R. Peel, or a Count Cavour, for the American law has declared that in the United States there shall be no similar person.
It appears that the Constitution-makers of North America were not unnaturally misled by the political philosophy of their day. It was laid down first that the legislative authority and the executive authority ought to be perfectly distinct; and secondly that in the English Constitution those authorities were so distinct. Both dogmas had slid into accepted axioms, and no one was bold enough to contest them. At that time no speculative politician perfectly comprehended that the essence of the English Constitution resided in the English Cabinet; that so far from the executive power being entirely distinct from the legislative power, the primary motive force, the supreme regulator of every thing, was precisely the same in both. A select committee of the legislature chosen by the legislature is the highest administrative body, and exercises all the powers of the sovereign executive that are tolerated by the law. The advantage of this arrangement, though contrary to a very old philosophical theory, is very great. The whole State will never work in harmony and in vigour while by possibility its two great powers—the power of legislating and the power of acting—can be declared in opposition to one another; and if they are independent, they will very often be in open antagonism, and be always in dread of it when they are not so. No government, it may be safely said, can be so strong as it should be when the enacting legislature and the acting executive are not subjected to a single effectual control.
The framers of the American Constitution did not perceive this cardinal maxim. The admitted theory of that day was that the English Constitution was one of “checks and balances”; and the Americans, who were very willing to take it as their model (the monarchial part excepted), hoped to balance their strong independent legislature by a strong independent executive. They hoped, too, to prevent the introduction into America of that parliamentary corruption—that bribery of popular representatives by money and patronage, which filled so large a space in the thoughts of politicians of the last century, and so large a space in the lives of some of them. But though their intentions were excellent and their reasons plausible, the effect of their regulations has been pernicious. By keeping the two careers of legislation and of administration distinct, they have rendered the life of a high politician, of a great statesman, aspiring to improve the laws and to regulate the policy of a great country, with them an impossibility. They have divided the greatest department of practical life into two halves, and neither of them is worth a man’s having.
We see the effect. There is no body of respected statesmen in America at this moment of their extreme need. It is not a fault that they have no great genius at their head. The few marvellous statesmen of the world are of necessity rare, and are not manufactured to order even by the bidding of an awful crisis. But it is a fault that they have not one or more possible parliamentary cabinets—several sets of trained men, with considerable abilities and known character, whose policy is decided, whose worth is tried, who have cast in their lot for years with certain ideas, whose names are respected in every household through Europe. In consequence of the unfortunate caution of their Constitution-makers, America has no such men; and Italy has them or will soon have them; but after a political experience of seventy years the United States have none. They have existed during two generations as a democracy without ideals; and are likely to die now a democracy without champions.
It is, however, only fair to observe, that the American Constitution has one great excellence at this moment, not indeed, as compared with the English Constitution, but as compared with that degraded imitation of it which exists, for example, in our Australian Colonies. In those governments the parliament is wholly unfit to choose an executive; it has not patriotism enough to give a decent stability to the government; there are “ministerial crises” once a week, and actual changes of administration once a month. The suffrage has been lowered to such a point among the refuse population of the gold colonies, that representative government is there a very dubious blessing, if not a certain and absolute curse. If such a parliament had met in such a crisis as the American Congress lately had to face, it is both possible and probable that no stable administration would have been formed at all. Every possible ministry would have been tried in succession; and every one would have been rejected in succession. We might have witnessed debates as aimless, as absurd, as unpractical, in their tenor, as those of certain French Parliaments, without the culture and refinement which made the latter more tolerable, though it could not make them more wise.
The American Constitution has at least the merit of preventing this last extreme of political degradation. Having placed Mr. Lincoln, an unknown man, in power, it has at least prevented his being superseded, or its being proposed that he should be superseded by some other equally unknown man. The American Constitution necessitated the choice for the first position at an awful crisis; it has at least settled once for all who he should be; it has compelled a conclusive choice, which an Australian Constitution would not have done.
But with this single item the aid which the American Constitution has given to Mr. Lincoln in his presidency begins and ends. It has put him there, and it has kept him there; but it has done no more. He has had to carry on the government with new subordinates; for at every change of the American President, all the officials, from the cabinet minister to the petty postmaster, are changed. So far from giving him any special powers suitable to a civil war, it authoritatively declares that the right of the people to keep and bear arms shall not be infringed; that it shall be illegal “to abridge the freedom of speech or of the press, or the right of the people peaceably to assemble or to petition for a redress of grievance”. It does not permit the punishment of any person, or the confiscation of his property, except after satisfactory proof before a civil tribunal. Even now, at this early state of the civil contest, martial law has been declared in Missouri and habeus corpus suspended in Baltimore; the property (slave-property, certainly, but still legal property in America) of Secessionists has been confiscated; the liberty of speech is almost at an end; the liberty of the press has ceased to exist. These last are indeed infractions of the law, not by the administration, but by the mob; it is they, and not Mr. Lincoln, who have burnt printers’ offices and proscribed dissentient individuals. But Mr. Lincoln and his ministers have broken, and have been obliged to break, the law on almost innumerable occasions, because that law provided no suitable procedure for the extreme contingency of a great civil war. The framers of the Constitution shrank naturally, and perhaps not unwisely, from providing against such an incalculable peril. They may have not unreasonably feared that they might augment the probability of such a calamity by recognising its possibility, even in order to provide against it. But their omission must have been grievously lamented by those who have had now to violate the law, for it may hereafter expose them to imminent danger. The English Parliament, in such an emergency, could and would condone every well-intentioned and beneficial irregularity by an act of indemnity. But the American Congress cannot do so. Its powers are limited powers, defined by the letter of a document; and in that document there is nothing to authorise a bill of indemnity—nor, indeed, could there be consistently with the very nature of it. By its fundamental conception, the States should relinquish certain special powers to the Federal Government, and those powers only; if the Federal Government could pass a bill of indemnity for infractions of the law, it would have absolute power; it would be a generally sovereign body, like the King, Lords, and Commons of England; it would have over the States of America, and over their people, not a defined and limited superiority, but an uncontrolled and unlimited one. Mr. Lincoln is, therefore, in peril from the inseparable accidents of the office he holds; he is a President under a Constitution which could give him only defined powers, and he is in a position requiring indefinite powers; he has therefore had to take his life in his hand, and violate the law. At present, popular opinion approves of what he has done; but the Republican party, of which he is the head, has many bitter enemies. If his announced aim should be successful, and he should re-establish the Union, those enemies will be reinforced by the whole constitutional power of the whole South, bitterly hostile to their vanquisher, bitterly aggrieved at the means by which they have been vanquished. Against such a coalition of enemies it will be difficult to defend the illegal, the arbitrary, the impeachable acts (for such, in the eye of American law, they are) of which Mr. Lincoln has been guilty. We doubt much whether he can succeed in compelling the South to return to the Union; but if he should, he will have succeeded at his peril.
It is easy to sum up the results of this long discussion. We cannot regard the American Constitution with the deference and the admiration with which all Americans used to regard it, and with which many Northern Americans still regard it. We admit that it has been beneficial to the American Republic as a bond of union; it has prevented war, it has fostered commerce, it has made them a nation to be counted with. But it always contained the seeds of disunion. There is no chance of saving such a polity when many States wish to separate from it, for the simple reason that its whole action essentially depends on the voluntary union of all, or of nearly all, the States. So far from its being wonderful that the present rupture has happened now, it is rather wonderful that it did not happen long since. It is rather surprising that a Government, which in practice, though not in theory, is dependent on the precarious consent of many distinct bodies, should have lasted so long, than that it should break asunder now. We see, too, that the American Constitution was, in its very essence, framed upon an erroneous principle. Its wise founders wished to guard against the characteristic evils of democracy; but they relied for this purpose upon ingenious devices and superficial subtilities. They left the essence of the government unchanged; they left the sovereign people, sovereign still. As has been shown in detail, the effect has been calamitous. Their ingenuities have produced painful evils, and aggravated great dangers; but they have failed of their intended purpose—they have neither refined the polity, nor restrained the people.
END OF VOL. III.
aberdeen: the university press
[1 ] As Hamilton’s plan is not easily accessible in this country, and may have some interest at the present moment, when some persons, at least, are desirous of attempting a similar experiment, we give it at length.
“The following paper was read by Col. Hamilton, as containing his ideas of a suitable plan of Government for the United States.
“1. The supreme legislative power of the United States of America to be vested in two distinct bodies of men, the one to be called the assembly, the other the senate, who, together, shall form the legislature of the United States, with power to pass all laws whatsoever, subject to the negative hereafter mentioned.
“2. The assembly to consist of persons elected by the people, to serve for three years.
“3. The senate to consist of persons elected to serve during good behaviour; their election to be made by electors chosen for that purpose by the people. In order to do this, the States to be divided into election districts. On the death, removal, or resignation of any senator, his place to be filled out of the district from which he came.
“4. The supreme executive authority of the United States to be vested in a governor, to be elected to serve during good behaviour. His election to be made by electors chosen by electors, chosen by the people, in the election districts aforesaid. His authorities and functions to be as follows:—
“To have a negative upon all laws about to be passed, and the execution of all laws passed; to have the entire direction of war, when authorised, or begun; to have, with the advice and approbation of the senate, the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of finance, war, and foreign affairs; to have the nomination of all other officers (ambassadors to foreign nations included) subject to the approbation or rejection of the senate; to have the power of pardoning all offences, except treason, which he shall not pardon without the approbation of the senate.
“5. On the death, resignation, or removal of the governor, his authorities to be exercised by the president of the senate, until a successor be appointed.
“6. The senate to have the sole power of declaring war; the power of advising and approving all treaties; the power of approving or rejecting all appointments of officers, except the heads or chiefs of the departments of finance, war, and foreign affairs.
“7. The supreme judicial authority of the United States to be vested in judges, to hold their offices during good behaviour, with adequate and permanent salaries. This court to have original jurisdiction in all causes of capture, and an appellative jurisdiction in all causes in which the revenues of the general government, or the citizens of foreign nations, are concerned.
“8. The legislature of the United States to have power to institute courts in each State, for the determination of all matters of general concern.
“9. The governors, senators, and all officers of the United States to be liable to impeachment for mal and corrupt conduct; and, upon conviction, to be removed from office, and disqualified from holding any place of trust or profit. All impeachments to be tried by a court to consist of the chief, or senior judge of the superior court of law in each State; provided that such judge hold his place during good behaviour, and have a permanent salary.
“10. All laws of the particular States contrary to the constitution or laws of the United States to be utterly void. And the better to prevent such laws being passed, the governor or president of each State shall be appointed by the general government, and shall have a negative upon the laws about to be passed in the State of which he is governor, or president.
“11. No State to have any forces, land or naval; and the militia of all the States to be under the sole and exclusive direction of the United States; the officers of which to be appointed and commissioned by them.”
[1 ]Economist, 1st June, 1861.