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.