The duties of the House of Representatives are solely legislative. Those of the Senate are legislative and executive, as with us those of the Upper House are legislative and judicial. The House of Representatives is always open to the public. The Senate is so open when it is engaged on legislative work; but it is closed to the public when engaged in executive session. No treaties can be made by the President, and no appointments to high offices confirmed, without the consent of the Senate; and this consent must be given-- as regards the confirmation of treaties--by two-thirds of the members present. This law gives to the Senate the power of debating with closed doors upon the nature of all treaties, and upon the conduct of the government as evinced in the nomination of the officers of State. It also gives to the Senate a considerable control over the foreign relations of the government. I believe that this power is often used, and that by it the influence of the Senate is raised much above that of the Lower House. This influence is increased again by the advantage of that superior statecraft and political knowledge which the six years of the Senator gives him over the two years of the Representative. The tried Representative, moreover, very frequently blossoms into a Senator but a Senator does not frequently fade into a Representative. Such occasionally is the case, and it is not even unconstitutional for an ex-President to reappear in either House. Mr. Benton, after thirty years' service in the Senate, sat in the House of Representatives. Mr. Crittenden, who was returned as Senator by Kentucky, I think seven times, now sits in the Lower House; and John Quincy Adams appeared as a Representative from Massachusetts after he had filled the presidential chair. And, moreover, the Senate of the United States is not debarred from an interference with money bills, as the House of Lords is debarred with us. "All bills for raising revenue," says the seventh section of the first article of the Constitution, "shall originate with the House of Representatives, but the Senate may propose or concur with amendments as on other bills." By this the Senate is enabled to have an authority in the money matters of the nation almost equal to that held by the Lower House--an authority quite sufficient to preserve to it the full influence of its other powers. With us the House of Commons is altogether in the ascendant, because it holds and jealously keeps to itself the exclusive command of the public purse. Congress can levy custom duties in the United States, and always has done so; hitherto the national revenue has been exclusively raised from custom duties. It cannot levy duties on exports. It can levy excise duties, and is now doing so; hitherto it has not done so. It can levy direct taxes, such as an income tax and a property tax; it hitherto has not done so, but now must do so. It must do so, I think I am justified in saying; but its power of doing this is so hampered by constitutional enactment, that it would seem that the Constitution as regards this heading must be altered before any scheme can be arranged by which a moderately just income tax can be levied and collected. This difficulty I have already mentioned, but perhaps it will be well that I should endeavor to make the subject more plain. It is specially declared: "That all duties, imposts, and excises shall be uniform throughout the united States." And again: "That no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken." And again, in the words before quoted: "Representatives and direct taxes shall be apportioned among the several States which shall be included in this Union, according to their respective numbers." By these repeated rules it has been intended to decree that the separate States shall bear direct taxation according to their population and the consequent number of their Representatives; and this intention has been made so clear that no direct taxation can be levied in opposition to it without an evident breach of the Constitution. To explain the way in which this will work, I will name the two States of Rhode Island and Iowa as opposed to each other, and the two States of Massachusetts and Indiana as opposed to each other. Rhode Island and Massachusetts are wealthy Atlantic States, containing, as regards enterprise and commercial success, the cream of the population of the United States. Comparing them in the ratio of population, I believe that they are richer than any other States. They return between them thirteen Representatives, Rhode Island sending two and Massachusetts eleven. Iowa and Indiana also send thirteen Representatives, Iowa sending two, and being thus equal to Rhode Island; Indiana sending eleven, and being thus equal to Massachusetts. Iowa and Indiana are Western States; and though I am not prepared to say that they are the poorest States of the Union, I can assert that they are exactly opposite in their circumstances to Rhode Island and Massachusetts. The two Atlantic States of New England are old established, rich, and commercial. The two Western States I have named are full of new immigrants, are comparatively poor, and are agricultural. Nevertheless any direct taxation levied on those in the East and on those in the West must be equal in its weight. Iowa must pay as much as Rhode Island; Indiana must pay as much as Massachusetts. But Rhode Island and Massachusetts could pay, without the sacrifice of any comfort to its people, without any sensible suffering, an amount of direct taxation which would crush the States of Iowa and Indiana--which indeed no tax gatherer could collect out of those States. Rhode Island and Massachusetts could with their ready money buy Iowa and Indiana; and yet the income tax to be collected from the poor States is to be the same in amount as that collected from the rich States. Within each individual State the total amount of income tax or of other direct taxation to be levied from that State may be apportioned as the State may think fit; but an income tax of two per cent. on Rhode Island would probably produce more than an income tax of ten per cent. in Iowa; whereas Rhode Island could pay an income tax of ten per cent. easier than could Iowa one of two per cent. It would in fact appear that the Constitution as at present framed is fatal to all direct taxation. Any law for the collection of direct taxation levied under the Constitution would produce internecine quarrel between the Western States and those which border on the Atlantic. The Western States would not submit to the taxation. The difficulty which one here feels is that which always attends an attempt at finality in political arrangements. One would be inclined to say at once that the law should be altered, and that as the money required is for the purposes of the Union and for State purposes, such a change should be made as would enable Congress to levy an income tax on the general income of the nation. But Congress cannot go beyond the Constitution. It is true that the Constitution is not final, and that it contains an express article ordaining the manner in which it may be amended. And perhaps I may as well explain here the manner in which this can be done, although by doing so I am departing from the order in which the Constitution is written. It is not final, and amendments have been made to it. But the making of such amendments is an operation so ponderous and troublesome that the difficulty attached to any such change envelops the Constitution with many of the troubles of finality. With us there is nothing beyond an act of Parliament. An act of Parliament with us cannot be unconstitutional. But no such power has been confided to Congress, or to Congress and the President together. No amendment of the Constitution can be made without the sanction of the State legislatures. Congress may propose any amendments, as to the expediency of which two-thirds of both Houses shall be agreed; but before such amendments can be accepted they must be ratified by the legislatures of three-fourths of the States, or by conventions in three-fourths of the States, "as the one or the other mode of ratification may be proposed by Congress." Or Congress, instead of proposing the amendments, may, on an application from the legislatures of two-thirds of the different States, call a convention for the proposing of them. In which latter case the ratification by the different States must be made after the same fashion as that required in the former case. I do not know that I have succeeded in making clearly intelligible the circumstances under which the Constitution can be amended; but I think I may have succeeded in explaining that those circumstances are difficult and tedious. In a matter of taxation why should States agree to an alteration proposed with the very object of increasing their proportion of the national burden? But unless such States will agree--unless Rhode Island, Massachusetts, and New York will consent to put their own necks into the yoke--direct taxation cannot be levied on them in a manner available for national purposes. I do believe that Rhode Island and Massachusetts at present possess a patriotism sufficient for such an act. But the mode of doing the work will create disagreement, or at any rate, tedious delay and difficulty. How shall the Constitution be constitutionally amended while one-third of the States are in revolt? In the eighth section of its first article the Constitution gives a list of the duties which Congress shall perform--of things, in short, which it shall do or shall have power to do: To raise taxes; to regulate commerce and the naturalization of citizens; to coin money, and protect it when coined; to establish postal communication; to make laws for defense of patents and copyrights; to constitute national courts of law inferior to the Supreme Court; to punish piracies; to declare war; to raise, pay for, and govern armies, navies, and militia; and to exercise exclusive legislation in a certain district which shall contain the seat of government of the United States, and which is therefore to be regarded as belonging to the nation at large, and not to any particular State. This district is now called the District of Columbia. It is situated on the Potomac, and contains the City of Washington. Then the ninth section of the same article declares what Congress shall not do. Certain immigration shall not be prohibited; THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED, except under certain circumstances; no ex post facto law shall be passed; no direct tax shall be laid unless in proportion to the census; no tax shall be laid on exports; no money shall be drawn from the treasury but by legal appropriation; no title of nobility shall be granted. The above are lists or catalogues of the powers which Congress has, and of the powers which Congress has not--of what Congress may do, and of what Congress may not do; and having given them thus seriatim, I may here perhaps be best enabled to say a few words as to the suspension of the privilege of the writ of habeas corpus in the United States. It is generally known that this privilege has been suspended during the existence of the present rebellion very many times; that this has been done by the Executive, and not by Congress; and that it is maintained by the Executive and by those who defend the conduct of the now acting Executive of the United States that the power of suspending the writ has been given by the Constitution to the President and not to Congress. I confess that I cannot understand how any man familiar either with the wording or with the spirit of the Constitution should hold such an argument. To me it appears manifest that the Executive, in suspending the privilege of the writ without the authority of Congress, has committed a breach of the Constitution. Were the case one referring to our British Constitution, a plain man, knowing little of parliamentary usage and nothing of law lore, would probably feel some hesitation in expressing any decided opinion on such a subject, seeing that our constitution is unwritten. But the intention has been that every citizen of the United States should know and understand the rules under which he is to live, and that he that runs may read. As this matter has been argued by Mr. Horace Binney, a lawyer of Philadelphia--much trusted, of very great and of deserved eminence throughout the States--in a pamphlet in which he defends the suspension of the privilege of the writ by the President, I will take the position of the question as summed up by him in his last page, and compare it with that clause in the Constitution by which the suspension of the privilege under certain circumstances is decreed; and to enable me to do this I will, in the first place, quote the words of the clause in question:-- "The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it." It is the second clause of that section which states what Congress shall not do. Mr. Binney argues as follows: "The conclusion of the whole matter is this--that the Constitution itself is the law of the privilege and of the exception to it; that the exception is expressed in the Constitution, and that the Constitution gives effect to the act of suspension when the conditions occur; that the conditions consist of two matters of fact--one a naked matter of fact; and the other a matter-of-fact conclusion from facts: that is to say, rebellion and the public danger, or the requirement of public safety." By these words Mr. Binney intends to imply that the Constitution itself gave the privilege of the writ of habeas corpus, and itself prescribes the taking away of that privilege under certain circumstances. But this is not so. The Constitution does not prescribe the suspension of the privilege of the writ under any circumstances. It says that it shall not be suspended except under certain circumstances. Mr. Binney's argument, if I understand it, then goes on as follows: As the Constitution prescribes the circumstances under which the privilege of the writ shall be suspended--the one circumstance being the naked matter of fact rebellion, and the other circumstance the public safety supposed to have been endangered by such rebellion, which Mr. Binney calls a matter-of-fact conclusion from facts--the Constitution must be presumed itself to suspend the privilege of the writ. Whether the President or Congress be the agent of the Constitution in this suspension, is not matter of moment. Either can only be an agent; and as Congress cannot act executively, whereas the President must ultimately be charged with the executive administration of the order for that suspension, which has in fact been issued by the Constitution itself, therefore the power of exercising the suspension of the writ may properly be presumed to be in the hands of the President and not to be in the hands of Congress. If I follow Mr. Binney's argument, it amounts to so much. But it seems to me that Mr. Binney is wrong in his premises and wrong in his conclusion. The article of the Constitution in question does not define the conditions under which the privilege of the writ shall be suspended. It simply states that this privilege shall never be suspended except under certain conditions. It shall not be suspended unless when the public safety may require such suspension on account of rebellion or invasion. Rebellion or invasion is not necessarily to produce such suspension. There is, indeed, no naked matter of fact to guide either President or Congress in the matter; and therefore I say that Mr. Binney is wrong in his premises. Rebellion or invasion might occur twenty times over, and might even endanger the public safety, without justifying the suspension of the privilege of the writ under the Constitution. I say also that Mr. Binney is wrong in his conclusion. The public safety must require the suspension before the suspension can be justified; and such requirement must be a matter for judgment and for the exercise of discretion. Whether or no there shall be any suspension is a matter for deliberation--not one simply for executive action, as though it were already ordered. There is no matter-of-fact conclusion from facts. Should invasion or rebellion occur, and should the public safety, in consequence of such rebellion or invasion, require the suspension of the privilege of the writ, then, and only then, may the privilege be suspended. But to whom is the power, or rather the duty, of exercising this discretion delegated? Mr. Binney says that "there is no express delegation of the power in the Constitution?" I maintain that Mr. Binney is again wrong, and that the Constitution does expressly delegate the power, not to the President, but to Congress. This is done so clearly, to my mind, that I cannot understand the misunderstanding which has existed in the States upon the subject. The first article of the Constitution treats "of the legislature." The second article treats "of the executive?" The third treats "of the judiciary." After that there are certain "miscellaneous articles" so called. The eighth section of the first article gives, as I have said before, a list of things which the legislature or Congress shall do. The ninth section gives a list of things which the legislature or Congress shall not do. The second item in this list is the prohibition of any suspension of the privilege of the writ of habeas corpus, except under certain circumstances. This prohibition is therefore expressly placed upon Congress, and this prohibition contains the only authority under which the privilege can be constitutionally suspended. Then comes the article on the executive, which defines the powers that the President shall exercise. In that article there is no word referring to the suspension of the privilege of the writ. He that runs may read. I say, therefore, that Mr. Lincoln's government has committed a breach of the Constitution in taking upon itself to suspend the privilege; a breach against the letter of the Constitution. It has assumed a power which the Constitution has not given it--which, indeed, the Constitution, by placing it in the hands of another body, has manifestly declined to put into the hands of the Executive; and it has also committed a breach against the spirit of the Constitution. The chief purport of the Constitution is to guard the liberties of the people, and to confide to a deliberative body the consideration of all circumstances by which those liberties may be affected. The President shall command the army; but Congress shall raise and support the army. Congress shall declare war. Congress shall coin money. Congress, by one of its bodies, shall sanction treaties. Congress shall establish such law courts as are not established by the Constitution. Under no circumstances is the President to decree what shall be done. But he is to do those things which the Constitution has decreed or which Congress shall decree. It is monstrous to suppose that power over the privilege of the writ of habeas corpus would, among such a people, and under such a Constitution, be given without limit to the chief officer, the only condition being that there should be some rebellion. Such rebellion might be in Utah Territory; or some trouble in the uttermost bounds of Texas would suffice. Any invasion, such as an inroad by the savages of Old Mexico upon New Mexico, would justify an arbitrary President in robbing all the people of all the States of their liberties! A squabble on the borders of Canada would put such a power into the hands of the President for four years; or the presence of an English frigate in the St. Juan channel might be held to do so. I say that such a theory is monstrous. And the effect of this breach of the Constitution at the present day has been very disastrous. It has taught those who have not been close observers of the American struggle to believe that, after all, the Americans are indifferent as to their liberties. Such pranks have been played before high heaven by men utterly unfitted for the use of great power, as have scared all the nations. Mr. Lincoln, the President by whom this unconstitutional act has been done, apparently delegated his assumed authority to his minister, Mr. Seward. Mr. Seward has reveled in the privilege of unrestrained arrests, and has locked men up with reason and without. He has instituted passports and surveillance; and placed himself at the head of an omnipresent police system with all the gusto of a Fouche, though luckily without a Fouche's craft or cunning. The time will probably come when Mr. Seward must pay for this--not with his life or liberty, but with his reputation and political name. But in the mean time his lettres de cachet have run everywhere through the States. The pranks which he played were absurd, and the arrests which he made were grievous. After awhile, when it became manifest that Mr. Seward had not found a way to success, when it was seen that he had inaugurated no great mode of putting down rebellion, he apparently lost his power in the cabinet. The arrests ceased, the passports were discontinued, and the prison doors were gradually opened. Mr. Seward was deposed, not from the cabinet, but from the premiership of the cabinet. The suspension of the privilege of the writ of habeas corpus was not countermanded, but the operation of the suspension was allowed to become less and less onerous; and now, in April, 1862, within a year of the commencement of the suspension, it has, I think, nearly died out. The object in hand now is rather that of getting rid of political prisoners than of taking others. This assumption by the government of an unconstitutional power has, as I have said, taught many lookers on to think that the Americans are indifferent to their liberties. I myself do not believe that such a conclusion would be just. During the present crisis the strong feeling of the people--that feeling which for the moment has been dominant--has been one in favor of the government as against rebellion. There has been a passionate resolution to support the nationality of the nation. Men have felt that they must make individual sacrifices, and that such sacrifices must include a temporary suspension of some of their constitutional rights. But I think that this temporary suspension is already regarded with jealous eyes; with an increasing jealousy which will have created a reaction against such policy as that which Mr. Seward has attemped, long before the close of Mr. Lincoln's Presidency. I know that it is wrong in a writer to commit himself to prophecies, but I find it impossible to write upon this subject without doing so. As I must express a surmise on this subject, I venture to prophesy that the Americans of the States will soon show that they are not indifferent to the suspension of the privilege of the writ of habeas corpus. On that matter of the illegality of the suspension by the President, I feel in my own mind that there is no doubt. The second article of the Constitution treats of the executive, and is very short. It places the whole executive power in the hands of the President, and explains with more detail the mode in which the President shall be chosen than the manner after which the duties shall be performed. The first section states that the executive shall be vested in a President, who shall hold his office for four years. With him shall be chosen a Vice-President. I may here explain that the Vice-President, as such, has no power either political or administrative. He is, ex-officio, the Speaker of the Senate; and should the President die, or be by other cause rendered unable to act as President, the Vice-President becomes President either for the remainder of the presidential term or for the period of the President's temporary absence. Twice, since the Constitution was written, the President has died and the Vice-President has taken his place. No President has vacated his position, even for a period, through any cause other than death. Then come the rules under which the President and Vice-President shall be elected--with reference to which there has been an amendment of the Constitution subsequent to the fourth Presidential election. This was found to be necessary by the circumstances of the contest between John Adams, Thomas Jefferson, and Aaron Burr. It was then found that the complications in the method of election created by the original clause were all but unendurable, and the Constitution was amended. I will not describe in detail the present mode of election, as the doing so would be tedious and unnecessary. Two facts I wish, however, to make specially noticeable and clear. The first is, that the President of the United States is now chosen by universal suffrage; and the second is, that the Constitution expressly intended that the President should not be chosen by universal suffrage, but by a body of men who should enjoy the confidence and fairly represent the will of the people. The framers of the Constitution intended so to write the words that the people themselves should have no more immediate concern in the nomination of the President than in that of the Senate. They intended to provide that the election should be made in a manner which may be described as thoroughly conservative. Those words, however, have been inefficient for their purpose. They have not been violated. But the spirit has been violated, while the words have been held sacred; and the presidential elections are now conducted on the widest principles of universal suffrage. They are essentially democratic. The arrangement, as written in the Constitution, is that each State shall appoint a body of electors equal in number to the Senators and Representatives sent by that State to Congress, and that thus a body or college of electors shall be formed equal in number to the two joint Houses of Congress, by which the President shall be elected. No member of Congress, however, can be appointed an elector. Thus New York, with thirty-three Representatives in the Lower House, would name thirty-five electors; and Rhode Island, with two members in the Lower House, would name four electors--in each case two being added for the two Senators. It may, perhaps, be doubted whether this theory of an election by electors has ever been truly carried out. It was probably the case even at the election of the first Presidents after Washington, that the electors were pledged in some informal way as to the candidate for whom they should vote; but the very idea of an election by electors has been abandoned since the Presidency of General Jackson. According to the theory of the Constitution, the privilege and the duty of selecting a best man as President was to be delegated to certain best men chosen for that purpose. This was the intention of those who framed the Constitution. It may, as I have said, be doubted whether this theory has ever availed for action; but since the days of Jackson it has been absolutely abandoned. The intention was sufficiently conservative. The electors to whom was to be confided this great trust, were to be chosen in their own States as each State might think fit. The use of universal suffrage for this purpose was neither enjoined nor forbidden in the separate States-- was neither treated as desirable or undesirable by the Constitution. Each State was left to judge how it would elect its own electors. But the President himself was to be chosen by those electors and not by the people at large. The intention is sufficiently conservative, but the intention is not carried out. The electors are still chosen by the different States in conformity with the bidding of the Constitution. The Constitution is exactly followed in all its biddings, as far as the wording of it is concerned; but the whole spirit of the document has been evaded in the favor of democracy, and universal suffrage in the presidential elections has been adopted. The electors are still chosen, it is true; but they are only chosen as the mouth-piece of the people's choice, and not as the mind by which that choice shall be made. We have all heard of Americans voting for a ticket--for the Democratic ticket, or the Republican ticket. All political voting in the States is now managed by tickets. As regards these presidential elections, each party decides on a candidate. Even this primary decision is a matter of voting among the party itself. When Mr. Lincoln was nominated as its candidate by the republican party, the names of no less than thirteen candidates were submitted to the delegates who were sent to a convention at Chicago, assembled for the purpose of fixing upon a candidate. At that convention Mr. Lincoln was chosen as the Republican candidate and in that convention was in fact fought the battle which was won in Mr. Lincoln's favor, although that convention was what we may call a private arrangement, wholly irrespective of any constitutional enactment. Mr. Lincoln was then proclaimed as the Republican candidate, and all Republicans were held as bound to support him. When the time came for the constitutional election of the electors, certain names were got together in each State as representing the Republican interest. These names formed the Republican ticket, and any man voting for them voted in fact for Lincoln. There were three other parties, each represented by a candidate, and each had its own ticket in the different States. It is not to be supposed that the supporters of Mr. Lincoln were very anxious about their ticket in Alabama, or those of Mr. Breckinridge as to theirs in Massachusetts. In Alabama, a Democratic slave ticket would, of course, prevail. In Massachusetts, a Republican free-soil ticket would do so. But it may, I think, be seen that in this way the electors have in reality ceased to have any weight in the elections--have in very truth ceased to have the exercise of any will whatever. They are mere names, and no more. Stat nominis umbra. The election of the President is made by universal suffrage, and not by a college of electors. The words as they are written are still obeyed; but the Constitution in fact has been violated, for the spirit of it has been changed in its very essence. The President must have been born a citizen of the United States. This is not necessary for the holder of any other office or for a Senator or Representative; he must be thirty-four years old at the time of his election. His executive power is almost unbounded. He is much more powerful than any minister can be with us, and is subject to a much lighter responsibility. He may be impeached by the House of Representatives before the Senate, but that impeachment only goes to the removal from office and permanent disqualification for office. But in these days, as we all practically understand, responsibility does not mean the fear of any great punishment, but the necessity of accounting from day to day for public actions. A leading statesman has but slight dread of the axe, but is in hourly fear of his opponent's questions. The President of the United States is subject to no such questionings, and as he does not even require a majority in either House for the maintenance of his authority, his responsibility sets upon him very slightly. Seeing that Mr. Buchanan has escaped any punishment for maladministration, no President need fear the anger of the people. The President is commander-in-chief of the army and of the navy. He can grant pardons--as regards all offenses committed against the United States. He has no power to pardon an offense committed against the laws of any State, and as to which the culprit has been tried before the tribunals of that State. He can make treaties; but such treaties are not valid till they have been confirmed by two- thirds of the Senators present in executive session. He appoints all ambassadors and other public officers--but subject to the confirmation of the Senate. He can convene either or both Houses of Congress at irregular times, and under certain circumstances can adjourn them, his executive power is, in fact, almost unlimited; and this power is solely in his own hands, as the Constitution knows nothing of the President's ministers. According to the Constitution these officers are merely the heads of his bureaus. An Englishman, however, in considering the executive power of the President, and in making any comparison between that and the executive power of any officer or officers attached to the Crown in England, should always bear in mind that the President's power, and even authority, is confined to the Federal government, and that he has none with reference to the individual States, religion, education, the administration of the general laws which concern every man and woman, and the real de facto government which comes home to every house,--these things are not in any way subject to the President of the United States. His legislative power is also great. He has a veto upon all acts of Congress, This veto is by no means a dead letter, as is the veto of the Crown with us; but it is not absolute. The President, if he refuses his sanction to a bill sent up to him from Congress, returns it to that House in which it originated, with his objections in writing. If, after that, such bill shall again pass through both the Senate and the House of Representatives, receiving in each House the approvals of two-thirds of those present, then such bill becomes law without the President's sanction. Unless this be done, the President's veto stops the bill. This veto has been frequently used, but no bill has yet been passed in opposition to it. The third article of the Constitution treats of the judiciary of the United States; but as I purpose to write a chapter devoted to the law courts and lawyers of the States, I need not here describe at length the enactments of the Constitution on this head. It is ordained that all criminal trials, except in cases of impeachment, shall be by jury. There are after this certain miscellaneous articles, some of which belong to the Constitution as it stood at first, and others of which have been since added as amendments. A citizen of one State is to be a citizen of every State. Criminals from one State shall not be free from pursuit in other States. Then comes a very material enactment: "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due." In speaking of a person held to labor the Constitution intends to speak of a slave, and the article amounts to a fugitive slave law. If a slave run away out of South Carolina and find his way into Massachusetts, Massachusetts shall deliver him up when called upon to do so by South Carolina. The words certainly are clear enough. But Massachusetts strongly objects to the delivery of such men when so desired. Such men she has delivered up, with many groanings and much inward perturbation of spirit. But it is understood, not in Massachusetts only, but in the free-soil States generally, that fugitive slaves shall not be delivered up by the ordinary action of the laws. There is a feeling strong as that which we entertain with reference to the rendition of slaves from Canada. With such a clause in the Constitution as that, it is hardly too much to say that no free-soil Slate will consent to constitutional action. Were it expunged from the Constitution, no slave State would consent to live under it. It is a point as to which the advocates of slavery and the enemies of slavery cannot be brought to act in union. But on this head I have already said what little I have to say. New States may be admitted by Congress, but the bounds of no old State shall be altered without the consent of such State. Congress shall have power to rule and dispose of the Territories and property of the United States. The United States guarantee every State a republican form of government; but the Constitution does not define that form of government. An ordinary citizen of the United States, if asked, would probably say that it included that description of franchise which I have called universal suffrage. Such, however, was not the meaning of those who framed the Constitution. The ordinary citizen would probably also say that it excluded the use of a king, though he would, I imagine, be able to give no good reason for saying so. I take a republican government to be that in which the care of the people is in the hands of the people. They may use an elected president, a hereditary king, or a chief magistrate called by any other name. But the magistrate, whatever be his name, must be the servant of the people and not their lord. He must act for them and at their bidding--not they at his. If he do so, he is the chief officer of a republic--as is our Queen with us. The United States Constitution also guarantees to each State protection against invasion, and, if necessary, against domestic violence--meaning, I presume, internal violence. The words domestic violence might seem to refer solely to slave insurrections; but such is not the meaning of the words. The free State of New York would be entitled to the assistance of the Federal government in putting down internal violence, if unable to quell such violence by her own power. This Constitution, and the laws of the United States made in pursuance of it, are to be held as the supreme law of the land. The judges of every State are to be bound thereby, let the laws or separate constitution of such State say what they will to the contrary. Senators and others are to be bound by oath to support the Constitution; but no religious test shall be required as a qualification to any office. In the amendments to the Constitution, it is enacted that Congress shall make no law as to the establishment of any religion, or prohibiting the free exercise thereof; and also that it shall not abridge the freedom of speech, or of the press, or of petition. The government, however, as is well known, has taken upon itself to abridge the freedom of the press. The right of the people to bear arms shall not be infringed. Then follow various clauses intended for the security of the people in reference to the administration of the laws. They shall not be troubled by unreasonable searches. They shall not be made to answer for great offenses except by indictment of a grand jury. They shall not be put twice in jeopardy for the same offense. They shall not be compelled to give evidence against themselves. Private property shall not be taken for public use without compensation. Accused persons in criminal proceedings shall be entitled to speedy and public trial. They shall be confronted with the witnesses against them, and shall have assistance of counsel. Suits in which the value controverted is above twenty dollars (4l.) shall be tried before juries. Excessive bail shall not be required, nor cruel and unusual punishments inflicted. In all which enactments we see, I think, a close resemblance to those which have been time honored among ourselves. The remaining amendments apply to the mode in which the President and Vice-President shall be elected, and of them I have already spoken. The Constitution is signed by Washington as President--as President and Deputy from Virginia. It is signed by deputies from all the other States, except Rhode Island. Among the signatures is that of Alexander Hamilton, from New York; of Franklin, heading a crowd in Pennsylvania, in the capital of which State the convention was held; and that of James Madison, the future President, from Virginia. In the beginning of this chapter I have spoken of the splendid results attained by those who drew up the Constitution; and then, as though in opposition to the praise thus given to their work, I have insisted throughout the chapter both on the insufficiency of the Constitution and on the breaches to which it has been subjected. I have declared my opinion that it is inefficient for some of its required purposes, and have said that, whether inefficient or efficient, it has been broken and in some degree abandoned. I maintain, however, that in this I have not contradicted myself. A boy, who declares his purpose of learning the AEneid by heart, will be held as being successful if at the end of the given period he can repeat eleven books out of the twelve. Nevertheless the reporter, in summing up the achievement, is bound to declare that that other book has not been learned. Under this Constitution of which I have been speaking, the American people have achieved much material success and great political power. As a people they have been happy and prosperous. Their freedom has been secured to them, and for a period of seventy-five years they have lived and prospered without subjection to any form of tyranny. This in itself is much, and should, I think, be held as a preparation for greater things to follow. Such, I think, should be our opinion, although the nation is at the present burdened by so heavy a load of troubles. That any written constitution should serve its purposes and maintain its authority in a nation for a dozen years is in itself much for its framers. Where are now the constitutions which were written for France? But this Constitution has so wound itself into the affections of the people, has become a mark for such reverence and love, has, after a trial of three-quarters of a century, so recommended itself to the judgment of men, that the difficulty consists in touching it, not in keeping it. Eighteen or twenty millions of people who have lived under it,--in what way do they regard it? Is not that the best evidence that can be had respecting it? Is it to them an old woman's story, a useless parchment, a thing of old words at which all must now smile? Heaven mend them, if they reverence it more, as I fear they do, than they reverence their Bible. For them, after seventy-five years of trial, it has almost the weight of inspiration. In this respect, with reference to this worship of the work of their forefathers, they may be in error. But that very error goes far to prove the excellence of the code. When a man has walked for six months over stony ways in the same boots, he will be believed when he says that his boots are good boots. No assertion to the contrary from any by-stander will receive credence, even though it be shown that a stitch or two has come undone, and that some required purpose has not effectually been carried out. The boots have carried the man over his stony roads for six months, and they must be good boots. And so I say that the Constitution must be a good constitution. As to that positive breach of the Constitution which has, as I maintain, been committed by the present government, although I have been at some trouble to prove it, I must own that I do not think very much of it. It is to be lamented; but the evil admits, I think, of easy repair. It has happened at a period of unwonted difficulty, when the minds of men were intent rather on the support of that nationality which guarantees their liberties, than on the enjoyment of those liberties themselves, and the fault may be pardoned if it be acknowledged. But it is essential that it should be acknowledged. In such a matter as that there should at any rate be no doubt. Now, in this very year of the rebellion, it may be well that no clamor against government should arise from the people, and thus add to the difficulties of the nation. But it will be bad, indeed, for the nation if such a fault shall have been committed by this government and shall be allowed to pass unacknowledged, unrebuked--as though it were a virtue and no fault. I cannot but think that the time will soon come in which Mr. Seward's reading of the Constitution and Mr. Lincoln's assumption of illegal power under that reading will receive a different construction in the States than that put upon it by Mr. Binney. But I have admitted that the Constitution itself is not perfect. It seems to me that it requires to be amended on two separate points-- especially on two; and I cannot but acknowledge that there would be great difficulty in making such amendments. That matter of direct taxation is the first. As to that I shall speak again in referring to the financial position of the country. I think, however, that it must be admitted, in any discussion held on the Constitution of the United States, that the theory of taxation as there laid down will not suffice for the wants of a great nation. If the States are to maintain their ground as a great national power, they must agree among themselves to bear the cost of such greatness. While a custom duty was sufficient for the public wants of the United States, this fault in the Constitution was not felt. But now that standing armies have been inaugurated, that iron-clad ships are held as desirable, that a great national debt has been founded, custom duties will suffice no longer, nor will excise duties suffice. Direct taxation must be levied, and such taxation cannot be fairly levied without a change in the Constitution. But such a change may be made in direct accordance with the spirit of the Constitution, and the necessity for such an alteration cannot be held as proving any inefficiency in the original document for the purposes originally required. As regards the other point which seems to me to require amendment, I must acknowledge that I am about to express simply my own opinion. Should Americans read what I write, they may probably say that I am recommending them to adopt the blunders made by the English in their practice of government. Englishmen, on the other hand, may not improbably conceive that a system which works well here under a monarchy, would absolutely fail under a presidency of four years' duration. Nevertheless I will venture to suggest that the government of the United States would be improved in all respects if the gentlemen forming the President's cabinet were admitted to seats in Congress. At present they are virtually irresponsible. They are constitutionally little more than head clerks. This was all very well while the government of the United States was as yet a small thing; but now it is no longer a small thing. The President himself cannot do all, nor can he be in truth responsible for all. A cabinet, such as is our cabinet, is necessary to him. Such a cabinet does exist, and the members of it take upon themselves the honors which are given to our cabinet ministers. But they are exempted from all that parliamentary contact which, in fact, gives to our cabinet ministers their adroitness, their responsibility, and their position in the country. On this subject also I must say another word or two farther on. But how am I to excuse the Constitution on those points as to which it has, as I have said, fallen through, in respect to which it has shown itself to be inefficient by the weakness of its own words? Seeing that all the executive power is intrusted to the President, it is especially necessary that the choice of the President should be guarded by constitutional enactments; that the President should be chosen in such a manner as may seem best to the concentrated wisdom of the country. The President is placed in his seat for four years. For that term he is irremovable. He acts without any majority in either of the legislative houses. He must state reasons for his conduct, but he is not responsible for those reasons. His own judgment is his sole guide. No desire of the people can turn him out; nor need he fear any clamor from the press. If an officer so high in power be needed, at any rate the choice of such an officer should be made with the greatest care. The Constitution has decreed how such care should be exercised, but the Constitution has not been able to maintain its own decree. The constituted electors of the President have become a mere name; and that officer is chosen by popular election, in opposition to the intention of those who framed the Constitution. The effect of this may be seen in the characters of the men so chosen. Washington, Jefferson, Madison, the two Adamses, and Jackson were the owners of names that have become known in history. They were men who have left their marks behind them. Those in Europe who have read of anything, have read of them. Americans, whether as Republicans they admire Washington and the Adamses, or as Democrats hold by Jefferson, Madison, and Jackson, do not at any rate blush for their old Presidents. But who has heard of Polk, of Pierce, of Buchanan? What American is proud of them? In the old days the name of a future President might be surmised. He would probably be a man honored in the nation; but who now can make a guess as to the next President? In one respect a guess may be made with some safety. The next President will be a man whose name has as yet offended no one by its prominence. But one requisite is essential for a President; he must be a man whom none as yet have delighted to honor. This has come of universal suffrage; and seeing that it has come in spite of the Constitution, and not by the Constitution, it is very bad. Nor in saying this am I speaking my own conviction so much as that of all educated Americans with whom I have discussed the subject. At the present moment universal suffrage is not popular. Those who are the highest among the people certainly do not love it. I doubt whether the masses of the people have ever craved it. It has been introduced into the presidential elections by men called politicians; by men who have made it a matter of trade to dabble in State affairs, and who have gradually learned to see how the constitutional law, with reference to the presidential electors, could be set aside without any positive breach of the Constitution.
* On this matter one of the best, and best-informed Americans that I have known, told me that he differed from me. "It introduced itself," said he. "It was the result of social and political forces. Election of the President by popular choice became a necessity." The meaning of this is, that in regard to their presidential elections the United States drifted into universal suffrage. I do not know that his theory is one more comfortable for his country than my own.
Whether or no any backward step can now be taken--whether these elections can again be put into the hands of men fit to exercise a choice in such a matter--may well be doubted. Facilis descensus Averni. But the recovery of the downward steps is very difficult. On that subject, however, I hardly venture here to give an opinion. I only declare what has been done, and express my belief that it has not been done in conformity with the wishes of the people, as it certainly has not been done in conformity with the intention of the Constitution. In another matter a departure has been made from the conservative spirit of the Constitution. This departure is equally grave with the other, but it is one which certainly does admit of correction. I allude to the present position assumed by many of the Senators, and to the instructions given to them by the State legislatures as to the votes which they shall give in the Senate. An obedience on their part to such instructions is equal in its effects to the introduction of universal suffrage into the elections. It makes them hang upon the people, divests them of their personal responsibility, takes away all those advantages given to them by a six years' certain tenure of office, and annuls the safety secured by a conservative method of election. Here again I must declare my opinion that this democratic practice has crept into the Senate without any expressed wish of the people. In all such matters the people of the nation has been strangely undemonstrative. It has been done as part of a system which has been used for transferring the political power of the nation to a body of trading politicians who have become known and felt as a mass, and not known and felt as individuals. I find it difficult to describe the present political position of the States in this respect. The millions of the people are eager for the Constitution, are proud of their power as a nation, and are ambitious of national greatness. But they are not, as I think, especially desirous of retaining political influences in their own hands. At many of the elections it is difficult to induce them to vote. They have among them a half-knowledge that politics is a trade in the hands of the lawyers, and that they are the capital by which those political tradesmen carry on their business. These politicians are all lawyers. Politics and law go together as naturally as the possession of land and the exercise of magisterial powers do with us. It may be well that it should be so, as the lawyers are the best-educated men of the country, and need not necessarily be the most dishonest. Political power has come into their hands, and it is for their purposes and by their influences that the spread of democracy has been encouraged. As regards the Senate, the recovery of its old dignity and former position is within its own power. No amendment of the Constitution is needed here, nor has the weakness come from any insufficiency of the Constitution. The Senate can assume to itself to-morrow its own glories, and can, by doing so, become the saviour of the honor and glory of the nation. It is to the Senate that we must look for that conservative element which may protect the United States from the violence of demagogues on one side, and from the despotism of military power on the other. The Senate, and the Senate only, can keep the President in check. The Senate also has a power over the Lower House with reference to the disposal of money, which deprives the House of Representatives of that exclusive authority which belongs to our House of Commons. It is not simply that the House of Representatives cannot do what is done by the House of Commons. There is more than this. To the Senate, in the minds of all Americans, belongs that superior prestige, that acknowledged possession of the greater power and fuller scope for action, which is with us as clearly the possession of the House of Commons. The United States Senate can be conservative, and can be so by virtue of the Constitution. The love of the Constitution in the hearts of all Americans is so strong that the exercise of such power by the Senate would strengthen rather than endanger its position. I could wish that the Senators would abandon their money payments, but I do not imagine that that will be done exactly in these days. I have now endeavored to describe the strength of the Constitution of the United States, and to explain its weakness. The great question is at this moment being solved, whether or no that Constitution will still be found equal to its requirements. It has hitherto been the main-spring in the government of the people. They have trusted with almost childlike confidence to the wisdom of their founders, and have said to their rulers--"There! in those words you must find the extent and the limit of your powers. It is written down for you, so that he who runs may read." That writing down, as it were, at a single sitting, of a sufficient code of instructions for the governors of a great nation, had not hitherto in the world's history been found to answer. In this instance it has, at any rate, answered better than in any other, probably because the words so written contained in them less pretense of finality in political wisdom than other written constitutions have assumed. A young tree must bend, or the winds will certainly break it. For myself I can honestly express my hope that no storm may destroy this tree.
In speaking of the American Constitution I have said so much of the American form of government that but little more is left to me to say under that heading. Nevertheless, I should hardly go through the work which I have laid out for myself if I did not endeavor to explain more continuously, and perhaps more graphically, than I found myself able to do in the last chapter, the system on which public affairs are managed in the United States. And here I must beg my readers again to bear in mind how moderate is the amount of governing which has fallen to the lot of the government of the United States; how moderate, as compared with the amount which has to be done by the Queen's officers of state for Great Britain, or by the Emperor, with such assistance as he may please to accept from his officers of state, for France. That this is so must be attributed to more than one cause; but the chief cause is undoubtedly to be found in the very nature of a federal government. The States are individually sovereign, and govern themselves as to all internal matters. All the judges in England are appointed by the Crown; but in the United States only a small proportion of the judges are nominated by the President. The greater number are servants of the different States. The execution of the ordinary laws for the protection of men and property does not fall on the government of the United States, but on the executives of the individual States--unless in some special matters, which will be defined in the next chapter. Trade, education, roads, religion, the passing of new measures for the internal or domestic comfort of the people,--all these things are more or less matters of care to our government. In the States they are matters of care to the governments of each individual State, but are not so to the central government at Washington. But there are other causes which operate in the same direction, and which have hitherto enabled the Presidents of the United States, with their ministers, to maintain their positions without much knowledge of statecraft, or the necessity for that education in state matters which is so essential to our public men. In the first place, the United States have hitherto kept their hands out of foreign politics. If they have not done so altogether, they have so greatly abstained from meddling in them that none of that thorough knowledge of the affairs of other nations has been necessary to them which is so essential with us, and which seems to be regarded as the one thing needed in the cabinets of other European nations. This has been a great blessing to the United States, but it has not been an unmixed blessing. It has been a blessing because the absence of such care has saved the country from trouble and from expense. But such a state of things was too good to last; and the blessing has not been unmixed, seeing that now, when that absence of concern in foreign matters has been no longer possible, the knowledge necessary for taking a dignified part in foreign discussions has been found wanting. Mr. Seward is now the Minister for Foreign Affairs in the States, and it is hardly too much to say that he has made himself a laughing-stock among the diplomatists of Europe, by the mixture of his ignorance and his arrogance. His reports to his own ministers during the single year of his office, as published by himself apparently with great satisfaction, are a monument not so much of his incapacity as of his want of training for such work. We all know his long state-papers on the "Trent" affair. What are we to think of a statesman who acknowledges the action of his country's servant to have been wrong, and in the same breath declares that he would have held by that wrong, had the material welfare of his country been thereby improved? The United States have now created a great army and a great debt. They will soon also have created a great navy. Affairs of other nations will press upon them, and they will press against the affairs of other nations. In this way statecraft will become necessary to them; and by degrees their ministers will become habile, graceful, adroit, and perhaps crafty, as are the ministers of other nations. And, moreover, the United States have had no outlying colonies or dependencies, such as an India and Canada are to us, as Cuba is and Mexico was to Spain, and as were the provinces of the Roman empire. Territories she has had, but by the peculiar beneficence of her political arrangements, these Territories have assumed the guise of sovereign States, and been admitted into federal partnership on equal terms, with a rapidity which has hardly left to the central government the reality of any dominion of its own. We are inclined to suppose that these new States have been allowed to assume their equal privileges and State rights because they have been contiguous to the old States, as though it were merely an extension of frontier. But this has not been so. California and Oregon have been very much farther from Washington than the Canadas are from London. Indeed they are still farther, and I hardly know whether they can be brought much nearer than Canada is to us, even with the assistance of railways. But nevertheless California and Oregon were admitted as States, the former as quickly and the latter much more quickly than its population would seem to justify Congress in doing, according to the received ratio of population. A preference in this way has been always given by the United States to a young population over one that was older. Oregon with its 60,000 inhabitants has one Representative. New York with 4,000,000 inhabitants has thirty- three. But in order to be equal with Oregon, New York should have sixty-six. In this way the outlying populations have been encouraged to take upon themselves their own governance, and the governing power of the President and his cabinet has been kept within moderate limits. But not the less is the position of the President very dominant in the eyes of us Englishmen by reason of the authority with which he is endowed. It is not that the scope of his power is great, but that he is so nearly irresponsible in the exercise of that power. We know that he can be impeached by the Representatives and expelled from his office by the verdict of the Senate; but this in fact does not amount to much. Responsibility of this nature is doubtless very necessary, and prevents ebullitions of tyranny such as those in which a sultan or an emperor may indulge; but it is not that responsibility which especially recommends itself to the minds of free men. So much of responsibility they take as a matter of course, as they do the air which they breathe. It would be nothing to us to know that Lord Palmerston could be impeached for robbing the treasury, or Lord Russell punished for selling us to Austria. It is well that such laws should exist, but we do not in the least suspect those noble lords of such treachery. We are anxious to know, not in what way they may be impeached and beheaded for great crimes, but by what method they may be kept constantly straight in small matters. That they are true and honest is a matter of course. But they must be obedient also, discreet, capable, and, above all things, of one mind with the public. Let them be that; or if not they, then with as little delay as may be, some others in their place. That with us is the meaning of ministerial responsibility. To that responsibility all the cabinet is subject. But in the government of the United States there is no such responsibility. The President is placed at the head of the executive for four years, and while he there remains no man can question him. It is not that the scope of his power is great. Our own Prime Minister is doubtless more powerful--has a wider authority. But it is that within the scope of his power the President is free from all check. There are no reins, constitutional or unconstitutional, by which he can be restrained. He can absolutely repudiate a majority of both Houses, and refuse the passage of any act of Congress even though supported by those majorities. He can retain the services of ministers distasteful to the whole country. He can place his own myrmidons at the head of the army and navy, or can himself take the command immediately on his own shoulders. All this he can do, and there is no one that can question him. It is hardly necessary that I should point out the fundamental difference between our king or queen, and the President of the United States. Our sovereign, we all know, is not responsible. Such is the nature of our constitution. But there is not on that account any analogy between the irresponsibility of the Queen and that of the President. The Queen can do no wrong; but therefore, in all matters of policy and governance, she must be ruled by advice. For that advice her ministers are responsible; and no act of policy or governance can be done in England as to which responsibility does not immediately settle on the shoulders appointed to bear it. But this is not so in the States. The President is nominally responsible. But from that every-day working responsibility, which is to us so invaluable, the President is in fact free. I will give an instance of this. Now, at this very moment of my writing, news has reached us that President Lincoln has relieved General McClellan from the command of the whole army, that he has given separate commands to two other generals--to General Halleck, namely, and, alas! to General Fremont, and that he has altogether altered the whole organization of the military command as it previously existed. This he did not only during war, but with reference to a special battle, for the special fighting of which he, as ex-officio commander-in-chief of the forces, had given orders. I do not hereby intend to criticise this act of the President's, or to point out that that has been done which had better have been left undone. The President, in a strategetical point of view, may have been, very probably has been, quite right. I, at any rate, cannot say that he has been wrong. But then neither can anybody else say so with any power of making himself heard. Of this action of the President's, so terribly great in its importance to the nation, no one has the power of expressing any opinion to which the President is bound to listen. For four years he has this sway, and at the end of four years he becomes so powerless that it is not then worth the while of any demagogue in a fourth-rate town to occupy his voice with that President's name. The anger of the country as to the things done both by Pierce and Buchanan is very bitter. But who wastes a thought upon either of these men? A past President in the United States is of less consideration than a past mayor in an English borough. Whatever evil he may have done during his office, when out of office he is not worth the powder which would be expended in an attack. But the President has his ministers as our Queen has hers. In one sense he has such ministers. He has high State servants who under him take the control of the various departments, and exercise among them a certain degree of patronage and executive power. But they are the President's ministers, and not the ministers of the people. Till lately there has been no chief minister among them, nor am I prepared to say that there is any such chief at present. According to the existing theory of the government these gentlemen have simply been the confidential servants of the commonwealth under the President, and have been attached each to his own department without concerted political alliance among themselves, without any acknowledged chief below the President, and without any combined responsibility even to the President. If one minister was in fault-- let us say the Postmaster-General--he alone was in fault, and it did not fall to the lot of any other minister either to defend him, or to declare that his conduct was indefensible. Each owed his duty and his defense to the President alone and each might be removed alone, without explanation given by the President to the others. I imagine that the late practice of the President's cabinet has in some degree departed from this theory; but if so, the departure has sprung from individual ambition rather than from any pre-concerted plan. Some one place in the cabinet has seemed to give to some one man an opportunity of making himself pre-eminent, and of this opportunity advantage has been taken. I am not now intending to allude to any individual, but am endeavoring to indicate the way in which a ministerial cabinet, after the fashion of our British cabinet, is struggling to get itself righted. No doubt the position of Foreign Secretary has for some time past been considered as the most influential under the President. This has been so much the case that many have not hesitated to call the Secretary of State the chief minister. At the present moment, May, l862, the gentleman who is at the head of the War Department has, I think, in his own hands greater power than any of his colleagues. It will probably come to pass before long that one special minister will be the avowed leader of the cabinet, and that he will be recognized as the chief servant of the States under the President. Our own cabinet, which now-a-days seems with us to be an institution as fixed as Parliament and as necessary as the throne, has grown by degrees into its present shape, and is not in truth nearly so old as many of us suppose it to be. It shaped itself, I imagine, into its present form, and even into its present joint responsibility, during the reign of George III. It must be remembered that even with us there is no such thing as a constitutional Prime Minister, and that our Prime Minister is not placed above the other ministers in any manner that is palpable to the senses. He is paid no more than the others; he has no superior title; he does not take the highest rank among them; he never talks of his subordinates, but always of his colleagues; he has a title of his own, that of First Lord of the Treasury, but it implies no headship in the cabinet. That he is the head of all political power in the nation, the Atlas who has to bear the globe, the god in whose hands rest the thunderbolts and the showers, all men do know. No man's position is more assured to him. But the bounds of that position are written in no book, are defined by no law, have settled themselves not in accordance with the recorded wisdom of any great men, but as expediency and the fitness of political things in Great Britain have seemed from time to time to require. This drifting of great matters into their proper places is not as closely in accordance with the idiosyncrasies of the American people as it is with our own. They would prefer to define by words, as the French do, what shall be the exact position of every public servant connected with their government; or rather of every public servant with whom the people shall be held as having any concern. But nevertheless, I think it will come to pass that a cabinet will gradually form itself at Washington as it has done at London, and that of that cabinet there will be some recognized and ostensible chief. But a Prime Minister in the United States can never take the place there which is taken here by our Premier. Over our Premier there is no one politically superior. The highest political responsibility of the nation rests on him. In the States this must always rest on the President, and any minister, whatever may be his name or assumed position, can only be responsible through the President. And it is here especially that the working of the United States system of government seems to me deficient--appears as though it wanted something to make it perfect and round at all points. Our ministers retire from their offices as do the Presidents; and indeed the ministerial term of office with us, though of course not fixed, is in truth much shorter than the presidential term of four years. But our ministers do not in fact ever go out. At one time they take one position, with pay, patronage, and power; and at another time another position, without these good things; but in either position they are acting as public men, and are in truth responsible for what they say and do. But the President, on whom it is presumed that the whole of the responsibility of the United States government rests, goes out at a certain day, and of him no more is heard. There is no future before him to urge him on to constancy; no hope of other things beyond, of greater honors and a wider fame, to keep him wakeful in his country's cause. He has already enrolled his name on the list of his country's rulers, and received what reward his country can give him. Conscience, duty, patriotism may make him true to his place. True to his place, in a certain degree, they will make him. But ambition and hope of things still to come are the moving motives of the minds of most men. Few men can allow their energies to expand to their fullest extent in the cold atmosphere of duty alone. The President of the States must feel that he has reached the top of the ladder, and that he soon will have done with life. As he goes out he is a dead man. And what can be expected from one who is counting the last lingering hours of his existence? "It will not be in my time," Mr. Buchanan is reported to have said, when a friend spoke to him with warning voice of the coming rebellion. "It will not be in my time." In the old days, before democracy had prevailed in upsetting that system of presidential election which the Constitution had intended to fix as permanent, the Presidents were generally re-elected for a second term. Of the first seven Presidents five were sent back to the White House for a second period of four years. But this has never been done since the days of General Jackson; nor will it be done, unless a stronger conservative reaction takes place than the country even as yet seems to promise. As things have lately ordered themselves, it may almost be said that no man in the Union would be so improbable a candidate for the Presidency as the outgoing President. And it has been only natural that it should be so. Looking at the men themselves who have lately been chosen, the fault has not consisted in their non-re-election, but in their original selection. There has been no desire for great men; no search after a man of such a nature that, when tried, the people should be anxious to keep him. "It will not be in my time," says the expiring President. And so, without dismay, he sees the empire of his country slide away from him. A President, with the possibility of re-election before him, would be as a minister who goes out knowing that he may possibly come in again before the session is over, and, perhaps, believing that the chances of his doing so are in his favor. Under the existing political phase of things in the United States, no President has any such prospect; but the ministers of the President have that chance. It is no uncommon thing at present for a minister under one President to reappear as a minister under another; but a statesman has no assurance that he will do so because he has shown ministerial capacity. We know intimately the names of all our possible ministers--too intimately as some of us think--and would be taken much by surprise if a gentleman without an official reputation were placed at the head of a high office. If something of this feeling prevailed as to the President's cabinet, if there were some assurance that competent statesmen would be appointed as Secretaries of State, a certain amount of national responsibility would by degrees attach itself to them, and the President's shoulders would, to that amount, be lightened. As it is, the President pretends to bear a burden which, if really borne, would indicate the possession of Herculean shoulders. But, in fact, the burden at present is borne by no one. The government of the United States is not in truth responsible either to the people or to Congress. But these ministers, if it be desired that they shall have weight in the country, should sit in Congress either as Senators or as Representatives. That they cannot so sit without an amendment of the Constitution, I have explained in the previous chapter; and any such amendment cannot be very readily made. Without such seats they cannot really share the responsibility of the President, or be in any degree amenable to public opinion for the advice which they give in their public functions. It will be said that the Constitution has expressly intended that they should not be responsible, and such, no doubt, has been the case. But the Constitution, good as it is, cannot be taken as perfect. The government has become greater than seems to have been contemplated when that code was drawn up. It has spread itself as it were over a wider surface, and has extended to matters which it was not necessary then to touch. That theory of governing by the means of little men was very well while the government itself was small. A President and his clerks may have sufficed when there were from thirteen to eighteen States; while there were no Territories, or none at least that required government; while the population was still below five millions; while a standing army was an evil not known and not feared; while foreign politics was a troublesome embroglio in which it was quite unnecessary that the United States should take a part. Now there are thirty-four States. The territories populated by American citizens stretch from the States on the Atlantic to those on the Pacific. There is a population of thirty million souls. At the present moment the United States are employing more soldiers than any other nation, and have acknowledged the necessity of maintaining a large army even when the present troubles shall be over. In addition to this the United States have occasion for the use of statecraft with all the great kingdoms of Europe. That theory of ruling by little men will not do much longer. It will be well that they should bring forth their big men and put them in the place of rulers. The President has at present seven ministers. They are the Secretary of State, who is supposed to have the direction of foreign affairs; the Secretary of the Treasury, who answers to our Chancellor of the Exchequer; the Secretaries of the Army and of the Navy; the Minister of the Interior; the Attorney-General; and the Postmaster-General. If these officers were allowed to hold seats in one House or the other--or rather if the President were enjoined to place in these offices men who were known as members of Congress, not only would the position of the President's ministers be enhanced and their weight increased, but the position also of Congress would be enhanced and the weight of Congress would be increased. I may, perhaps, best exemplify this by suggesting what would be the effect on our Parliament by withdrawing from it the men who at the present moment--or at any moment--form the Queen's cabinet. I will not say that by adding to Congress the men who usually form the President's cabinet, a weight would be given equal to that which the withdrawal of the British cabinet would take from the British Parliament. I cannot pay that compliment to the President's choice of servants. But the relationship between Congress and the President's ministers would gradually come to resemble that which exists between Parliament and the Queen's ministers. The Secretaries of State and of the Treasury would after awhile obtain that honor of leading the Houses which is exercised by our high political officers, and the dignity added to the positions would make the places worthy of the acceptance of great men. It is hardly so at present. The career of one of the President's ministers is not a very high career as things now stand; nor is the man supposed to have achieved much who has achieved that position. I think it would be otherwise if the ministers were the leaders of the legislative houses. To Congress itself would be given the power of questioning and ultimately of controlling these ministers. The power of the President would no doubt be diminished as that of Congress would be increased. But an alteration in that direction is in itself desirable. It is the fault of the present system of government in the United States that the President has too much of power and weight, while the Congress of the nation lacks power and weight. As matters now stand, Congress has not that dignity of position which it should hold; and it is without it because it is not endowed with that control over the officers of the government which our Parliament is enabled to exercise. The want of this close connection with Congress and the President's ministers has been so much felt that it has been found necessary to create a medium of communication. This has been done by a system which has now become a recognized part of the machinery of the government, but which is, I believe, founded on no regularly organized authority; at any rate, no provision is made for it in the Constitution, nor, as far as I am aware, has it been established by any special enactment or written rule. Nevertheless, I believe I am justified in saying that it has become a recognized link in the system of government adopted by the United States. In each House standing committees are named, to which are delegated the special consideration of certain affairs of State. There are, for instance, Committees of Foreign Affairs, of Finance, the Judiciary Committee, and others of a similar nature. To these committees are referred all questions which come before the House bearing on the special subject to which each is devoted. Questions of taxation are referred to the Finance Committee before they are discussed in the House; and the House, when it goes into such discussion, has before it the report of the committee. In this way very much of the work of the legislature is done by branches of each House, and by selected men whose time and intellects are devoted to special subjects. It is easy to see that much time and useless debate may be thus saved; and I am disposed to believe that this system of committees has worked efficiently and beneficially. The mode of selection of the members has been so contrived as to give to each political party that amount of preponderance in each committee which such party holds in the House. If the Democrats have in the Senate a majority, it would be within their power to vote none but Democrats into the Committee on Finance; but this would be manifestly unjust to the Republican party, and the injustice would itself frustrate the object of the party in power; therefore the Democrats simply vote to themselves a majority in each committee, keeping to themselves as great a preponderance in the committee as they have in the whole House, and arranging also that the chairman of the committee shall belong to their own party. By these committees the chief legislative measures of the country are originated and inaugurated, as they are with us by the ministers of the Crown; and the chairman of each committee is supposed to have a certain amicable relation with that minister who presides over the office with which his committee is connected. Mr. Sumner is at present chairman of the Committee on Foreign Affairs, and he is presumed to be in connection with Mr. Seward, who, as Secretary of State, has the management of the foreign relations of the government. But it seems to me that this supposed connection between the committees and the ministers is only a makeshift, showing by its existence the absolute necessity of close communication between the executive and the legislative, but showing also by its imperfections the great want of some better method of communication. In the first place, the chairman of the committee is in no way bound to hold any communication with the minister. He is simply a Senator, and as such has no ministerial duties and can have none. He holds no appointment under the President, and has no palpable connection with the executive. And then, it is quite as likely that he may be opposed in politics to the minister as that he may agree with him. If the two be opposed to each other on general politics, it may be presumed that they cannot act together in union on one special subject; nor, whether they act in union or do not so act, can either have any authority over the other. The minister is not responsible to Congress, nor is the chairman of the committee in any way bound to support the minister. It is presumed that the chairman must know the minister's secrets; but the chairman may be bound by party considerations to use those secrets against the minister. The system of committees appears to me to be good as regards the work of legislation. It seems well adapted to effect economy of time and the application of special men to special services. But I am driven to think that that connection between the chairmen of the committees and the ministers which I have attempted to describe is an arrangement very imperfect in itself, but plainly indicating the necessity of some such close relation between the executive and the legislature of the United States as does exist in the political system of Great Britain. With us the Queen's minister has a greater weight in Parliament than the President's minister could hold in Congress, because the Queen is bound to employ a minister in whom the Parliament has confidence. As soon as such confidence ceases, the minister ceases to be minister. As the Crown has no politics of its own, it is simply necessary that the minister of the day should hold the politics of the people as testified by their representatives. The machinery of the President's government cannot be made to work after this fashion. The President himself is a political officer, and the country is bound to bear with his politics for four years, whatever those politics may be. The ministry which he selects, on coming to his seat, will probably represent a majority in Congress, seeing that the same suffrages which have elected the President will also have elected the Congress. But there exists no necessity on the part of the President to employ ministers who shall carry with them the support of Congress. If, however, the minister sat in Congress--if it were required of each minister that he should have a seat either in one House or in the other--the President would, I think, find himself constrained to change a ministry in which Congress should decline to confide. It might not be so at first, but there would be a tendency in that direction. The governing powers do not rest exclusively with the President or with the President and his ministers; they are shared in a certain degree with the Senate, which sits from time to time in executive session, laying aside at such periods its legislative character. It is this executive authority which lends so great a dignity to the Senate, gives it the privilege of preponderating over the other House, and makes it the political safeguard of the nation. The questions of government as to which the Senate is empowered to interfere are soon told. All treaties made by the President must be sanctioned by the Senate; and all appointments made by the President must be confirmed by the Senate. The list is short; and one is disposed to think, when first hearing it, that the thing itself does not amount to much. But it does amount to very much; it enables the Senate to fetter the President, if the Senate should be so inclined, both as regards foreign politics and home politics. A Secretary for Foreign Affairs at Washington may write what dispatches he pleases without reference to the Senate; but the Senate interferes before those dispatches can have resulted in any fact which may be detrimental to the nation. It is not only that the Senate is responsible for such treaties as are made, but that the President is deterred from the making of treaties for which the Senate would decline to make itself responsible. Even though no treaty should ever be refused its sanction by the Senate, the protecting power of the Senate in that matter would not on that account have been less necessary or less efficacious. Though the bars with which we protect our house may never have been tried by a thief, we do not therefore believe that our house would have been safe if such bars had been known to be wanting. And then, as to that matter of State appointments, is it not the fact that all governing power consists in the selection of the agents by whom the action of government shall be carried on? It must come to this, I imagine, when the argument is pushed home. The power of the most powerful man depends only on the extent of his authority over his agents. According to the Constitution of the United States, the President can select no agent either at home or abroad, for purposes either of peace or war, or to the employment of whom the Senate does not agree with him. Such a rule as this should save the nation from the use of disreputable agents as public servants. It might perhaps have done much more toward such salvation than it has as yet effected, and it may well be hoped that it will in future do more. Such are the executive powers of the Senate; and it is, I think, remarkable that the Senate has always used these powers with extreme moderation. It has never shown a factious inclination to hinder government by unnecessary interference, or a disposition to clip the President's wings by putting itself altogether at variance with him. I am not quite sure whether some fault may not have lain on the other side; whether the Senate may not have been somewhat slack in exercising the protective privileges given to it by the Constitution. And here I cannot but remark how great is the deference paid to all governors and edicts of government throughout the United States. One would have been disposed to think that such a feeling would be stronger in an old country such as Great Britain than in a young country such as the States. But I think that it is not so. There is less disposition to question the action of government either at Washington or at New York, than there is in London. Men in America seem to be content when they have voted in their governors, and to feel that for them all political action is over until the time shall come for voting for others. And this feeling, which seems to prevail among the people, prevails also in both Houses of Congress. Bitter denunciations against the President's policy or the President's ministers are seldom heard. Speeches are not often made with the object of impeding the action of government. That so small and so grave a body as the Senate should abstain from factious opposition to the government when employed on executive functions, was perhaps to be expected. It is of course well that it should be so. I confess, however, that it has appeared to me that the Senate has not used the power placed in its hands as freely as the Constitution has intended, But I look at the matter as an Englishman, and as an Englishman I can endure no government action which is not immediately subject to parliamentary control. Such are the governing powers of the United States. I think it will be seen that they are much more limited in their scope of action than with us; but within that scope of action much more independent and self-sufficient. And, in addition to this, those who exercise power in the United States are not only free from immediate responsibility, but are not made subject to the hope or fear of future judgment. Success will bring no award, and failure no punishment. I am not aware that any political delinquency has ever yet brought down retribution on the head of the offender in the United States, or that any great deed has been held as entitling the doer of it to his country's gratitude. Titles of nobility they have none; pensions they never give; and political disgrace is unknown. The line of politics would seem to be cold and unalluring. It is cold; and would be unalluring, were it not that as a profession it is profitable. In much of this I expect that a change will gradually take place. The theory has been that public affairs should be in the hands of little men. The theory was intelligible while the public affairs were small; but they are small no longer, and that theory, I fancy, will have to alter itself. Great men are needed for the government, and in order to produce great men a career of greatness must be opened to them. I can see no reason why the career and the men should not be forthcoming.
CHAPTER XI. THE LAW COURTS AND LAWYERS OF THE UNITED STATES.
I do not propose to make any attempt to explain in detail the practices and rules of the American courts of law. No one but a lawyer should trust himself with such a task, and no lawyer would be enabled to do so in the few pages which I shall here devote to the subject. My present object is to explain, as far as I may be able to do so, the existing political position of the country. As this must depend more or less upon the power vested in the hands of the judges, and upon the tenure by which those judges hold their offices, I shall endeavor to describe the circumstances of the position in which the American judges are placed; the mode in which they are appointed; the difference which exists between the National judges and the State judges, and the extent to which they are or are not held in high esteem by the general public whom they serve. It will, I think, be acknowledged that this last matter is one of almost paramount importance to the welfare of a country. At home in England we do not realize the importance to us in a political as well as social view of the dignity and purity of our judges, because we take from them all that dignity and purity can give as a matter of course. The honesty of our bench is to us almost as the honesty of heaven. No one dreams that it can be questioned or become questionable, and therefore there are but few who are thankful for its blessings. Few Englishmen care to know much about their own courts of law, or are even aware that the judges are the protectors of their liberties and property. There are the men, honored on all sides, trusted by every one, removed above temptation, holding positions which are coveted by all lawyers. That it is so is enough for us; and as the good thence derived comes to us so easily, we forget to remember that we might possibly be without it. The law courts of the States have much in their simplicity and the general intelligence of their arrangements to recommend them. In all ordinary causes justice is done with economy, with expedition, and I believe with precision. But they strike an Englishman at once as being deficient in splendor and dignity, as wanting that reverence which we think should be paid to words falling from the bench, and as being in danger as to that purity without which a judge becomes a curse among a people, a chief of thieves, and an arch-minister of the Evil One. I say as being in danger; not that I mean to hint that such want of purity has been shown, or that I wish it to be believed that judges with itching palms do sit upon the American bench; but because the present political tendency of the State arrangements threatens to produce such danger. We in England trust implicitly in our judges--not because they are Englishmen, but because they are Englishmen carefully selected for their high positions. We should soon distrust them if they were elected by universal suffrage from all the barristers and attorneys practicing in the different courts; and so elected only for a period of years, as is the case with reference to many of the State judges in America. Such a mode of appointment would, in our estimation, at once rob them of their prestige. And our distrust would not be diminished if the pay accorded to the work were so small that no lawyer in good practice could afford to accept the situation. When we look at a judge in court, venerable beneath his wig and adorned with his ermine, we do not admit to ourselves that that high officer is honest because he is placed above temptation by the magnitude of his salary. We do not suspect that he, as an individual, would accept bribes and favor suitors if he were in want of money. But, still, we know as a fact that an honest man, like any other good article, must be paid for at a high price. Judges and bishops expect those rewards which all men win who rise to the highest steps on the ladder of their profession. And the better they are paid, within measure, the better they will be as judges and bishops. Now, the judges in America are not well paid, and the best lawyers cannot afford to sit upon the bench. With us the practice of the law and the judicature of our law courts are divided. We have chancery barristers and common law barristers; and we have chancery courts and courts of common law. In the States there is no such division. It prevails neither in the National or Federal courts of the United States, nor in the courts of any of the separate States. The code of laws used by the Americans is taken almost entirely from our English laws--or rather, I should say, the Federal code used by the nation is so taken, and also the various codes of the different States--as each State takes whatever laws it may think fit to adopt. Even the precedents of our courts are held as precedents in the American courts, unless they chance to jar against other decisions given specially in their own courts with reference to cases of their own. In this respect the founders of the American law proceedings have shown a conservation bias and a predilection for English written and traditional law which are much at variance with that general democratic passion for change by which we generally presume the Americans to have been actuated at their Revolution. But though they have kept our laws, and still respect our reading of those laws, they have greatly altered and simplified our practice. Whether a double set of courts of law and equity are or are not expedient, either in the one country or in the other, I do not pretend to know. It is, however, the fact that there is no such division in the States. Moreover, there is no division in the legal profession. With us we have barristers and attorneys. In the States the same man is both barrister and attorney; and--which is perhaps in effect more startling--every lawyer is presumed to undertake law cases of every description. The same man makes your will, sells your property, brings an action for you of trespass against your neighbor, defends you when you are accused of murder, recovers for you two and sixpence, and pleads for you in an argument of three days' length when you claim to be the sole heir to your grandfather's enormous property. I need not describe how terribly distinct with us is the difference between an attorney and a barrister, or how much farther than poles asunder is the future Lord Chancellor, pleading before the Lords Justices at Lincoln's Inn, from the gentleman who, at the Old Bailey, is endeavoring to secure the personal liberty of the ruffian who, a week or two since, walked off with all your silver spoons. In the States no such differences are known. A lawyer there is a lawyer, and is supposed to do for any client any work that a lawyer may be called on to perform. But though this is the theory--and as regards any difference between attorney and barrister is altogether the fact--the assumed practice is not, and cannot be, maintained as regards the various branches of a lawyer's work. When the population was smaller, and the law cases were less complicated, the theory and the practice were no doubt alike. As great cities have grown up, and properties large in amount have come under litigation, certain lawyers have found it expedient and practicable to devote themselves to special branches of their profession. But this, even up to the present time, has not been done openly, as it were, or with any declaration made by a man as to his own branch of his calling. I believe that no such declaration on his part would be in accordance with the rules of the profession. He takes a partner, however, and thus attains his object; or more than one partner, and then the business of the house is divided among them according to their individual specialties. One will plead in court, another will give chamber counsel, and a third will take that lower business which must be done, but which first-rate men hardly like to do. It will easily be perceived that law in this way will be made cheaper to the litigant. Whether or no that may be an unadulterated advantage, I have my doubts. I fancy that the united professional incomes of all the lawyers in the States would exceed in amount those made in England. In America every man of note seems to be a lawyer; and I am told that any lawyer who will work may make a sure income. If it be so, it would seem that Americans per head pay as much (or more) for their law as men do in England. It may be answered that they get more law for their money. That may be possible, and even yet they may not be gainers. I have been inclined to think that there was an unnecessarily slow and expensive ceremonial among us in the employment of barristers through a third party; it has seemed that the man of learning, on whose efforts the litigant really depends, is divided off from his client and employer by an unfair barrier, used only to enhance his own dignity and give an unnecessary grandeur to his position. I still think that the fault with us lies in this direction. But I feel that I am less inclined to demand an immediate alteration in our practice than I was before I had seen any of the American courts of law. It should be generally understood that lawyers are the leading men in the States, and that the governance of the country has been almost entirely in their hands ever since the political life of the nation became full and strong. All public business of importance falls naturally into their hands, as with us it falls into the hands of men of settled wealth and landed property. Indeed, the fact on which I insist is much more clear and defined in the States than it is with us. In England the lawyers also obtain no inconsiderable share of political and municipal power. The latter is perhaps more in the hands of merchants and men in trade than of any other class; and even the highest seats of political greatness are more open with us to the world at large than they seem to be in the States to any that are not lawyers. Since the days of Washington every President of the United States has, I think, been a lawyer, excepting General Taylor. Other Presidents have been generals, but then they have also been lawyers. General Jackson was a successful lawyer. Almost all the leading politicians of the present day are lawyers. Seward, Cameron, Welles, Stanton, Chase, Sumner, Crittenden, Harris, Fessenden, are all lawyers. Webster, Clay, Calhoun, and Cass were lawyers. Hamilton and Jay were lawyers. Any man with an ambition to enter upon public life becomes a lawyer as a matter of course. It seems as though a study and practice of the law were necessary ingredients in a man's preparation for political life. I have no doubt that a very large proportion of both houses of legislature would be found to consist of lawyers. I do not remember that I know of the circumstance of more than one Senator who is not a lawyer. Lawyers form the ruling class in America, as the landowners do with us. With us that ruling class is the wealthiest class; but this is not so in the States. It might be wished that it were so. The great and ever-present difference between the National or Federal affairs of the United States government and the affairs of the government of each individual State, should be borne in mind at all times by those who desire to understand the political position of the States. Till this be realized no one can have any correct idea of the bearings of politics in that country. As a matter of course we in England have been inclined to regard the government and Congress of Washington as paramount throughout the States, in the same way that the government of Downing Street and the Parliament of Westminster are paramount through the British isles. Such a mistake is natural; but not the less would it be a fatal bar to any correct understanding of the Constitution of the United States. The National and State governments are independent of each other, and so also are the National and State tribunals. Each of these separate tribunals has its own judicature, its own judges, its own courts, and its own functions. Nor can the supreme tribunal at Washington exercise any authority over the proceedings of the courts in the different States, or influence the decision of their judges. For not only are the National judges and State judges independent of each other, but the laws in accordance with which they are bound to act may be essentially different. The two tribunals--those of the nation and of the State--are independent and final in their several spheres. On a matter of State jurisprudence no appeal lies from the supreme tribunal of New York or Massachusetts to the supreme tribunal of the nation at Washington. The National tribunals are of two classes. First, there is the Supreme Court specially ordained by the Constitution. And then there are such inferior courts as Congress may from time to time see fit to establish. Congress has no power to abolish the Supreme Court, or to erect another tribunal superior to it. This court sits at Washington, and is a final court of appeal from the inferior national courts of the Federal empire. A system of inferior courts, inaugurated by Congress, has existed for about sixty years. Each State for purposes of national jurisprudence is constituted as a district; some few large States, such as New York, Pennsylvania, and Illinois, being divided into two districts. Each district has one district court, presided over by one judge. National causes in general, both civil and criminal, are commenced in these district courts, and those involving only small amounts are ended there. Above these district courts are the National circuit courts, the districts or States having been grouped into circuits as the counties are grouped with us. To each of these circuits is assigned one of the judges of the Supreme Court of Washington, who is the ex- officio judge of that circuit, and who therefore travels as do our common law judges. In each district he sits with the judge of that district, and they two together form the circuit court. Appeals from the district court lie to the circuit court in cases over a certain amount, and also in certain criminal cases. It follows therefore that appeals lie from one judge to the same judge when sitting with another--an arrangement which would seem to be fraught with some inconvenience. Certain causes, both civil and criminal, are commenced in the circuit courts. From the circuit courts the appeal lies to the Supreme Court at Washington; but such appeal beyond the circuit court is not allowed in cases which are of small magnitude or which do not involve principles of importance. If there be a division of opinion in the circuit court the case goes to the Supreme Court; from whence it might be inferred that all cases brought from the district court to the circuit court would be sent on to the Supreme Court, unless the circuit judge agreed with the district judge; for the district judge having given his judgment in the inferior court, would probably adhere to it in the superior court. No appeal lies to the Supreme Court at Washington in criminal cases. All questions that concern more than one State, or that are litigated between citizens of different States, or which are international in their bearing, come before the national judges. All cases in which foreigners are concerned, or the rights of foreigners, are brought or may be brought into the national courts. So also are all causes affecting the Union itself, or which are governed by the laws of Congress and not by the laws of any individual State. All questions of admiralty law and maritime jurisdiction, and cases affecting ambassadors or consuls, are there tried. Matters relating to the post-office, to the customs, the collection of national taxes, to patents, to the army and navy, and to the mint, are tried in the national courts. The theory is, that the national tribunals shall expound and administer the national laws and treaties, protect national offices and national rights; and that foreigners and citizens of other States shall not be required to submit to the decisions of the State tribunals; in fact, that national tribunals shall take cognizance of all matters as to which the general government of the nation is responsible. In most of such cases the national tribunals have exclusive jurisdiction. In others it is optional with the plaintiff to select his tribunal. It is then optional with the defendant, if brought into a State court, to remain there or to remove his cause into the national tribunal. The principle is, that either at the beginning, or ultimately, such questions shall or may be decided by the national tribunals. If in any suit properly cognizable in a State court the decision should turn on a clause in the Constitution, or on a law of the United States, or on the act of a national offense, or on the validity of a national act, an appeal lies to the Supreme Court of the United States and to its officers. The object has been to give to the national tribunals of the nation full cognizance of its own laws, treaties, and congressional acts. The judges of all the national tribunals, of whatever grade or rank, hold their offices for life, and are removable only on impeachment. They are not even removable on an address of Congress; thus holding on a firmer tenure even than our own judges, who may, I believe, be moved on an address by Parliament. The judges in America are not entitled to any pension or retiring allowances; and as there is not, as regards the judges of the national courts, any proviso that they shall cease to sit after a certain age, they are in fact immovable whatever may be their infirmities. Their position in this respect is not good, seeing that their salaries will hardly admit of their making adequate provision for the evening of life. The salary of the Chief Justice of the United States is only 1300l. per annum. All judges of the national courts, of whatever rank, are appointed by the President, but their appointments must be confirmed by the Senate. This proviso, however, gives to the Senate practically but little power, and is rarely used in opposition to the will of the President. If the President name one candidate, who on political grounds is distasteful to a majority of the Senate, it is not probable that a second nomination made by him will be more satisfactory. This seems now to be understood, and the nomination of the cabinet ministers and of the judges, as made by the President, are seldom set aside or interfered with by the Senate, unless on grounds of purely personal objection. The position of the national judges as to their appointments and mode of tenure is very different from that of the State judges, to whom in a few lines I shall more specially allude. This should, I think, be specially noticed by Englishmen when criticising the doings of the American courts. I have observed statements made to the effect that decisions given by American judges as to international or maritime affairs affecting English interests could not be trusted, because the judges so giving them would have been elected by popular vote, and would be dependent on the popular voice for reappointment. This is not so. Judges are appointed by popular vote in very many of the States. But all matters affecting shipping and all questions touching foreigners are tried in the national courts before judges who have been appointed for life. I should not myself have had any fear with reference to the ultimate decision in the affair of Slidell and Mason had the "Trent" been carried into New York. I would, however, by no means say so much had the cause been one for trial before the tribunals of the State of New York. I have been told that we in England have occasionally fallen into the error of attributing to the Supreme Court at Washington a quasi political power which it does not possess. This court can give no opinion to any department of the government, nor can it decide upon or influence any subject that has not come before it as a regularly litigated case in law. Though especially founded by the Constitution, it has no peculiar power under the Constitution, and stands in no peculiar relation either to that or to acts of Congress. It has no other power to decide on the constitutional legality of an act of Congress or an act of a State legislature, or of a public officer, than every court, State and National, high and low, possesses and is bound to exercise. It is simply the national court of last appeal. In the different States such tribunals have been established as each State by its constitution and legislation has seen fit to adopt. The States are entirely free on this point. The usual course is to have one Supreme Court, sometimes called by that name, sometimes the Court of Appeals, and sometimes the Court of Errors. Then they have such especial courts as their convenience may dictate. The State jurisprudence includes all causes not expressly or by necessary implication secured to the national courts. The tribunals of the States have exclusive control over domestic relations, religion, education, the tenure and descent of land, the inheritance of property, police regulations, municipal economy, and all matters of internal trade. In this category, of course, come the relations of husband and wife, parent and child, master and servant, owner and slave, guardian and ward, tradesman and apprentice. So also do all police and criminal regulations not external in their character-- highways, railroads, canals, schools, colleges, the relief of paupers, and those thousand other affairs of the world by which men are daily surrounded in their own homes and their own districts. As to such subjects Congress can make no law, and over them Congress and the national tribunals have no jurisdiction. Congress cannot say that a man shall be hung for murder in New York, nor if a man be condemned to be hung in New York can the President pardon him. The legislature of New York must say whether or no hanging shall be the punishment adjudged to murder in that State; and the Governor of the State of New York must pronounce the man's pardon--if it be that he is to be pardoned. But Congress must decide whether or no a man shall be hung for murder committed on the high seas, or in the national forts or arsenals; and in such a case it is for the President to give or to refuse the pardon. The judges of the States are appointed as the constitution or the laws of each State may direct in that matter. The appointments, I think, in all the old States, were formerly vested in the governor. In some States such is still the case. In some, if I am not mistaken, the nomination is now made, directly, by the legislature. But in most of the States the power of appointing has been claimed by the people, and the judges are voted in by popular election, just as the President of the Union and the Governors of the different States are voted in. There has for some years been a growing tendency in this direction, and the people in most of the States have claimed the power--or rather the power has been given to the people by politicians who have wished to get into their hands, in this way, the patronage of the courts. But now, at the present moment, there is arising a strong feeling of the inexpediency of appointing judges in such a manner. An anti-democratic bias is taking possession of men's minds, causing a reaction against that tendency to universal suffrage in everything which prevailed before the war began. As to this matter of the mode of appointing judges, I have heard but one opinion expressed; and I am inclined to think that a change will be made in one State after another, as the constitutions of the different States are revised. Such revisions take place generally at periods of about twenty-five years' duration. If, therefore, it be acknowledged that the system be bad, the error can be soon corrected. Nor is this mode of appointment the only evil that has been adopted in the State judicatures. The judges in most of the States are not appointed for life, nor even during good behavior. They enter their places for a certain term of years, varying from fifteen down, I believe, to seven. I do not know whether any are appointed for a term of less than seven years. When they go out they have no pensions; and as a lawyer who has been on the bench for seven years can hardly recall his practice, and find himself at once in receipt of his old professional income, it may easily be imagined how great will be the judge's anxiety to retain his position on the bench. This he can do only by the universal suffrages of the people, by political popularity, and a general standing of that nature which enables a man to come forth as the favorite candidate of the lower orders. This may or may not be well when the place sought for is one of political power--when the duties required are political in all their bearings. But no one can think it well when the place sought for is a judge's seat on the bench--when the duties required are solely judicial. Whatever hitherto may have been the conduct of the judges in the courts of the different States, whether or no impurity has yet crept in, and the sanctity of justice has yet been outraged, no one can doubt the tendency of such an arrangement. At present even a few visits to the courts constituted in this manner will convince an observer that the judges on the bench are rather inferior than superior to the lawyers who practice before them. The manner of address, the tone of voice, the lack of dignity in the judge, and the assumption by the lawyer before him of a higher authority than his, all tell this tale. And then the judges in these courts are not paid at a rate which will secure the services of the best men. They vary in the different States, running from about 600l. to about 1000l. per annum. But a successful lawyer, practicing in the courts in which these judges sit, not unfrequently earns 3000l. a year. A professional income of 2000l. a year is not considered very high. When the different conditions of the bench are considered, when it is remembered that the judge may lose his place after a short term of years, and that during that short term of years he receives a payment much less than that earned by his successful professional brethren, it can hardly be expected that first-rate judges should be found. The result is seen daily in society. You meet Judge This and Judge That, not knowing whether they are ex-judges or in-judges; but you soon learn that your friends do not hold any very high social position on account of their forensic dignity. It is, perhaps, but just to add that in Massachusetts, which I cannot but regard as in many respects the noblest of the States, the judges are appointed by the Governor, and are appointed for life.
CHAPTER XII. THE FINANCIAL POSITION.
The Americans are proud of much that they have done in this war, and indeed much has been done which may justify pride; but of nothing are they so proud as of the noble dimensions and quick growth of their government debt. That Mr. Secretary Chase, the American Chancellor of the Exchequer, participates in this feeling I will not venture to say; but if he do not, he is well-nigh the only man in the States who does not do so. The amount of expenditure has been a subject of almost national pride, and the two millions of dollars a day, which has been roughly put down as the average cost of the war, has always been mentioned by Northern men in a tone of triumph. This feeling is, I think, intelligible; and although we cannot allude to it without a certain amount of inward sarcasm, a little gentle laughing in the sleeve, at the nature of this national joy, I am not prepared to say that it is altogether ridiculous. If the country be found able and willing to pay the bill, this triumph in the amount of the cost will hereafter be regarded as having been anything but ridiculous. In private life an individual will occasionally be known to lavish his whole fortune on the accomplishment of an object which he conceives to be necessary to his honor. If the object be in itself good, and if the money be really paid, we do not laugh at such a man for the sacrifices which he makes. For myself, I think that the object of the Northern States in this war has been good. I think that they could not have avoided the war without dishonor, and that it was incumbent on them to make themselves the arbiters of the future position of the South, whether that future position shall or shall not be one of secession. This they could only do by fighting. Had they acceded to secession without a civil war, they would have been regarded throughout Europe as having shown themselves inferior to the South, and would for many years to come have lost that prestige which their spirit and energy had undoubtedly won for them; and in their own country such submission on their part would have practically given to the South the power of drawing the line of division between the two new countries. That line, so drawn, would have given Virginia, Maryland, Kentucky, and Missouri to the Southern Republic. The great effect of the war to the North will be, that the Northern men will draw the line of secession, if any such line be drawn. I still think that such line will ultimately be drawn, and that the Southern States will be allowed to secede. But if it be so, Virginia, Maryland, Kentucky, and Missouri will not be found among these seceding States; and the line may not improbably be driven south of North Carolina and Tennessee. If this can be so, the object of the war will, I think, hereafter be admitted to have been good. Whatever may be the cost in money of joining the States which I have named to a free-soil Northern people, instead of allowing them to be buried in that dismal swamp which a confederacy of Southern slave States will produce, that cost can hardly be too much. At the present moment there exists in England a strong sympathy with the South, produced partly by the unreasonable vituperation with which the North treated our government at the beginning of the war, and by the capture of Mason and Slidell; partly also by that feeling of good-will which a looker on at a combat always has for the weaker side. But, although this sympathy does undoubtedly exist, I do not imagine that many Englishmen are of opinion that a confederacy of Southern slave States will ever offer to the general civilization of the world very many attractions. It cannot be thought that the South will equal the North in riches, in energy, in education, or general well-being. Such has not been our experience of any slave country; such has not been our experience of any tropical country; and such especially has not been our experience of the Southern States of the North American Union. I am no abolitionist, but to me it seems impossible that any Englishman should really advocate the cause of slavery against the cause of free soil. There are the slaves, and I know that they cannot be abolished--neither they nor their chains; but, for myself, I will not willingly join my lot with theirs. I do not wish to have dealings with the African negro, either as a free man or as a slave, if I can avoid them, believing that his employment by me in either capacity would lead to my own degradation.* Such, I think, are the feelings of Englishmen generally on this matter. And if such be the case, will it not be acknowledged that the Northern men have done well to fight for a line which shall add five or six States to that Union which will in truth be a union of free men, rather than to that confederacy which, even if successful, must owe its success to slavery?