SECTION I.SECTION I.
"We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
So much for the authority, and the objects of this celebratedconstitution, as set forth in its preamble.
Its provisions are so well known that it is needful only toindicate them. In Europe, the difficulty is to avoid supposingthe state governments to be subordinate to the general."They are coordinate departments of one simple and integralwhole." State government legislates and administers in allaffairs which concern its own citizens. To the federal governmentare consigned all affairs which concern citizens, as foreignersfrom other states, or as fellow-citizens with all in certainspecified relations.
The general objects of the instrument are easily stated; andan apparently clear case of separation between the general andstate governments drawn out upon paper. But the application ofthe instrument to practice is the difficulty.
In this, there are two grand difficulties, among many ofinferior importance. The one is, to construe the instrument; theother is, to bridge over its awful chasms of compromise.
There has never been a solemn instrument drawn up yet withoutleaving room for varieties of construction. There never can be,under our present use of abstract terms; no two men'sabstractions being alike, or discoverably so. Of course, theprofession in this case is, that words are to be taken accordingto their just and natural import; that there is to be nostraining; that they are to be judged of according to commonsense; and so on. The old jests against etymologists are enoughto prove how far men are from agreeing what straining is. As tocommon sense, men respond in unison to a revelation of it; butthey rarely agree, a priori, as to what it is. Thisdifficulty is a wholly unavoidable one. The refuge under it is inthe maxim, "the majority are right." If the case indispute be one of judicial import, the citizen may appeal to theSupreme Court. If it be of a different nature, it must be left tothat other kind of supreme court,--the majority,--and the verdictwill be given through the ballot-boxes.
The other difficulty, that of compromise, is declared to havebeen equally unavoidable. Concession, large mutual concession,was clearly necessary. To what extent, may be faintly conceivedfrom the following extract from the Federalist. To some readers,who are more interested in the present workings of thegovernment, than in the embarrassments of its inventors, thisextract may appear dull. But it is useful to be presented with anoutline of the difficulties incurred in legislating for a federalrepublic, both as a fact in political science; as a means offorming something like a just judgment of the framers of theconstitution; and as a ground of hope that, so much danger havingbeen surmounted, that which remains may be also overcome.
" This one tells us, that the proposed constitution oughtto be rejected, because it is not a confederation of the States,but a government over individuals. Another admits, that it oughtto be a government over individuals, to a certain extent, but byno means to the extent proposed. A third does not object to thegovernment over individuals, or to the extent proposed; but tothe want of a Bill of Rights. A fourth concurs in the absolutenecessity of a Bill of Rights, but contends that it ought to bedeclaratory, not of the personal rights of individuals, but ofthe rights reserved to the States in their political capacity. Afifth is of opinion that a Bill of Rights of any sort would besuperfluous and misplaced; and that the plan would beunexceptionable, but for the fatal power of regulating the timesand places of election. An objector in a large State exclaimsloudly against the unreasonable equality of representation in thesenate. An objector in a small State is equally loud against thedangerous inequality in the House of Representatives. From onequarter, we are alarmed with the amazing expense, from the numberof persons who are to administer the new government. From anotherquarter, and sometimes from the same quarter on another occasion,the cry is that the Congress will be but the shadow of arepresentation; and that the government would be far lessobjectionable, if the number of the expenses were doubled. Apatriot in a State that does not import or export, discernsinsuperable objections against the power of direct taxation. Thepatriotic adversary, in a State of great exports and imports, isnot less dissatisfied that the whole burden of taxes may bethrown on consumption. This politician discovers in theconstitution a direct and irresistible tendency to monarchy.That, is equally sure that it will end in aristocracy. Another ispuzzled to say which of these shapes it will ultimately assume,but sees clearly it must be one or other of them. While a fourthis not wanting, who, with no less confidence, affirms, that theconstitution is so far from having a bias towards either of thesedangers, that the weight on that side will not be sufficient tokeep it upright and firm against its opposite propensities. Withanother class of adversaries to the constitution, the languageis, that the legislative, executive, and judiciary departmentsare intermixed in such a manner as to contradict all the ideas ofregular government, and all the requisite precautions in favourof liberty. Whilst this objection circulates in vague and generalexpressions, there are not a few who lend their sanction to it.Let each one come forward with his particular explanation, andscarcely any two are exactly agreed on the subject. In the eyesof one, the junction of the senate with the president, in theresponsible function of appointing to offices, instead of vestingthis power in the executive alone, is the vicious part of theorganisation. To another, the exclusion of the House ofRepresentatives, whose numbers alone could be a due securityagainst corruption and partiality in the exercise of such apower, is equally obnoxious. With a third, the admission of thepresident into any share of a power, which must ever be adangerous engine in the hands of the executive magistrate, is anunpardonable violation of the maxims of republican jealousy. Nopart of the arrangement, according to some, is more inadmissiblethan the trial of impeachments by the Senate, which isalternately a member both of the legislative and executivedepartments, when this power so evidently belonged to thejudiciary department. We concur fully, reply others, in theobjection to this part of the plan; but we can never agree that areference of impeachments to the judiciary authority would be anamendment of the error: our principal dislike to the organisationarises from the extensive powers already lodged in thatdepartment. Even among the zealous patrons of a council of state,the most irreconcilable variance is discovered, concerning themode in which it ought to be constituted. The demand of onegentleman is, that the council should consist of a small number,to be appointed by the most numerous branch of the legislature.Another would prefer a larger number, and considers it afundamental condition, that the appointment should be made by thepresident himself."*
It must have cost Mr. Madison some trouble to vary the mode ofexpression in putting this host of objections. We cannot butadmire the ingenuity with which he has brought them into view.But what should we say to the management which should reconcilethe differences themselves? Concessions, various and large, wereobviously necessary. I am not about to give a catalogue of whatthese actually were. They may be learned from any history of theperiod. Suffice it that the general and state governments notonly urged and established claims, but admitted a set ofprohibitions on themselves.
In all this there appears no fatal compromise. But there weresome which made the wisest men of the time tremble for thestability of their noble work. There seems peril enough in theliability to the occurrence of new questions, which could not beforeseen, and for which an opening might, or might not, happen tobe left. When, in addition to such, there were some questionsleft to be settled by a future government, from the inability ofthe statesmen of 1787 to agree upon them; these statesmen mightwell be uneasy about the stability of their work. Of the firstorder of questions is that which is now debated with greatanimosity,--whether Congress has power to abolish slavery in theDistrict of Columbia: a disputed point of construction, on whichit seems to me that no plain person can be blamed for notanticipating any difference of opinion. Of the second class isthat great question, or nest of questions, respecting ReservedRights. It was agreed that all unforeseen questions which mightarise with regard to the respective powers of the general andstate governments, should be settled by the state governments;but then, there was an indefinite limitation introduced in theclause, that the general government should have all powersnecessary for the prosecution of such and such purposes. Thisvague clause has been the occasion of the Union being shaken toits centre; and it may be thus shaken again, before the questionsarising out of it are all settled.
Even these, being open questions, are less formidable than thecompromise of the true republican principle which is apparent insome provisions of the constirution, and in some of the mostimportant institutions of the country. The northern States, whichhad abolished, on principle, a far milder slavery than that ofthe cotton and sugar-growing south, agreed to admit slavery inthe south as a basis for direct taxation, and for representation.They did worse. They agreed to act in behalf of their southernfellow-citizens in the capture and restitution of runaway slaves,and in the defence of masters against rebellious slaves. Whatbitter sorrows of conscience and of feeling this compromise hascost their children, it is impossible fully to describe. Ofcourse, the law, being against conscience, i. e. the lawof man coming into collision with the law of God, is constantlybroken; and causes of dissension hence arise. I know that slaveryis only recognised by the constitution as a matter of fact; andthat it is only twice mentioned; in connexion withrepresentation, and with the restitution to their masters of"persons held to labour escaping into another State:"but the fact remains that a man who abhors slavery is compellableby the law which his fathers made, to deliver up to the owner aslave whose act of absconding he approves. It is impossible toestimate the evils which have proceeded from, and which will yetarise out of this guilty but "necessary" compromise.
There was difficulty in bringing the greater and smallerStates into union. The smaller States could not agree to such anunequal representation as should render them liable to beswallowed up by the larger; while the larger could not consent tobe reduced to an equality with the smaller. The Senatewas established to afford an equal state representation; whilethe House of Representatives affords a fair representation of thenation in the aggregate, according to numbers. But the principleof the general government is, that it governs the entire peopleas one nation, and not as a league of States. There ought, inconsistency with this, to be no state representation at all; andthe Senate is an anomaly. An anomalous institution cannot be verylong lived. A second chamber, on a more consistent principle,will probably be established in its place, to fulfil itsfunctions as a Court of Review, and as a check upon theprecipitation of the other house, and, if need be, upon theencroachments of the executive. There is yet more of compromiseinvolved in this institution of the Senate; as might be expected,since there is no end of compromise when principle is oncedeparted from; yet there are statesmen who defend it on othergrounds than that its establishment was necessary to thefoundation of any federal government at all. One observed to me,"Some things look well in theory, and fail in practice. Thismay not be justifiable in theory; but it works well." Ifthis last sentence be true, the well working of the Senate isonly a temporary afffair; an accident. Its radical change becomesa question of time merely; and the recent agitation of thequestion of Instructions seems to indicate that the time is notvery far distant.
The appointment of the judges for life is another departurefrom the absolute republican principle. There is no actualcontrol over them. Theirs is a virtually irresponsible office.Much can be and is said in defence of this arrangement; andwhatever is said, is most powerfully enforced by the weight ofcharacter possessed by the judiciary, up to this day. But allthis does not alter the fact that irresponsible offices are aninconsistency in a republic. With regard to all this compromise,no plea of expediency can alter the fact that, while the House ofRepresentatives is mainly republican, the Senate is onlypartially so, being anomalous in its character, aud its membersnot being elected immediately by the people; and that thejudiciary is not republican at all, since the judges areindependent of the nation, from the time of their appointment.
I was told, on high authority, that the assent of the firstnine States to the constitution, in 1788, was obtained by meansnot absolutely fair. What devices were used to procure anapparent majority, I was not informed; but it is generallysupposed that if there had been no legislatures active on theoccasion, if it had been put to the vote throughout the nation,the ratification would not have taken place when it did. ChiefJustice Marshall gives testimony to this effect in hisLife of Washington. "So small, in many instances, was themajority in favour of the constitution, as to afford strongground for the opinion that, had the influence of character beenremoved, the intrinsic merits of the instrument would not havesecured its adoption. Indeed, it is scarcely to be doubted that,in some of the adopting States, a majority of the people were inopposition."
That a constitution, so framed, and so carried, should haveworked as well as it has done, seems to point out two veryencouraging things; that we may, without rashness, speak of it asWashington did, when he said, "I was convinced it approachednearer to perfection than any government hitherto institutedamong men;" and that the world may quietly and hopefullyawait the further proceedings of the American people, in theiradvances towards an uncompromising democracy. There will bechanges, but not therefore convulsio. There will be the changewhich Jefferson foresaw, and provided for without dread."Still," says he, so lately as June, 1824, "weconsider our constitutions not otherwise changeable than by theauthority of the people, on a special election of representativesfor that very purpose: they are, until then, the lex legum.But can they be made unchangeable? Can one generation bindanother, and all others, in succession for ever? I think not. TheCreator has made the earth for the living, not thedead."--"A generation may bind itself as long as itsmajority continues in life; when that has disappeared, anothermajority is in place, holds all the rights and powers theirpredecessors once held, and may change their laws andinstitutions to suit themselves. Nothing then is unchangeable butthe inherent and inalienable rights of man." **
Nothing can be more striking to a stranger than the experiencegained, after some residence in the United States, of theultimate ascendancy of the will of the majority--i. e.of the right--in defiance of all appearances to the contrary.The review of what I witnessed of this kind, in the course of twoyears, with regard to the conduct of Congress alone, surprisesand cheers me. It is true that I see several wrongs unredressed;several wounds inflicted on the people's liberties yet unhealed;but these are cases in which the people do not yet understandwhat has been done; or have not yet roused themselves to showthat they do.
In the Senate, the people's right of petition is invaded. Lastsession, it was ordained that all petitions and memorialsrelating to a particular subject--slavery in the District ofColumbia-- should be laid on the table unread, and never recurredto. Of course, the people will not long submit to this. What hasbeen already achieved in Congress on this topic is a securitythat the rest will follow. When I entered the United States,there was an absolute and most ominous silence in Congress aboutslavery. Almost every leading man there told me in conversationthat it was the grand question of all; that every member's mindwas full of it; that nearly all other questions were muchaffected, or wholly determined by it; yet no one even alluded toit in public. Before I left, it had found its way into bothhouses. The houses had, in some sort, come to a vote upon it,which showed the absolute abolition strength in the House ofRepresentatives to be forty-seven. The entering wedge having beenthus far driven, it is inconceivable that the nation will allowit to be withdrawn by surrendering their right of petition. WhenI left, however, the people had virtually no right of petitionwith regard to the District over which they--i. e. theirCongress--have an exclusive jurisdiction.
Again. There were loud and extensive complaints, last session,of the despotism of the chair in the House of Representatives,chiefly in connexion with the subject of slavery. No members, itwas said, were allowed a fair hearing but those who sat in aparticular part of the house. If this complaint arises out of thepeevishness of political disappointment, it will soon becontradicted by facts. If it is true, it is a grave injury. Ineither case, the chair will not long possess this power ofdespotism. If the favoured are few, as the complaint states, theinjured many will demand and obtain the power to make themselvesheard in turn; and no spirit of party can long stand in the wayof a claim so just.
Again. After the gentlemen of Charleston had disgraced theircity and country, by breaking into the post-office, and burningthe contents of the mail-bags, in their dread of abolitionpapers, a post-master wrote to a member of the cabinet, desiringhis approbation for having examined and refused to forwardcertain papers mailed at his office. Tlle member of the cabinet,Kendall, gave the desired sanction to this audaciousstoppage of the post-office function, declaring that the good ofthe community (as judged of by the individual) is a considerationabove the law. The strangers in the land knew not what to make ofthe fool-hardiness of hazarding such a declaration, in a man ofKendall's wit. It was known that he desired the office ofpost-master-general; that the president wished him to have it,and that the doubt was whether the Senate would confirm theappointment. Soon after this apparently fatal declaration, he wasnominated, and the Senate confirmed his appointment. Thedeclaration, no doubt, seated him in office. The southern memberswere won by it. Kendall calculated rightly for his immediateobject. What is to become of him when the people shall at lengthrecognise the peril and insult to themselves of one of theirfavoured servants declaring the will of an individual to beoccasionally subversive of the law--i. e. of the will ofthe majority--remains to be seen. Meantime, the continuance inoffice of the person whose declaration to the above effectremains unretracted, may be regarded as one of the deepest woundswhich has heen inflicted on the liberties of the nation.
Another attempt, brought on, no doubt, by Kendall's success,to derange or stop the functions of the post-office, has failed.Mr. Calhoun's Bill, commonly called the Gag Bill, prohibitingpostmasters from receiving and forwarding any papers whatsoevercontaining anything relating to slavery, actually was brought toa third reading by the casting vote of the president of theSenate. There was fear, at the time, that this casting vote mightensure the success of the bill, from the popularity of thevice-president. But the bill was thrown out on the third reading;and the effect of the casting vote has been, not to aid the billbut to injure materially the popularity of the vice-president.This is so far well. It shows that the people are preparing tograpple honestly with the great, the hideous question, out ofwhich arise these minor encroachments upon their liberties
Out of the slavery question arose the last monstroususurpation of Congress, for which the emphatic rebuke of thenation awaits the siinning members. The story deserves to be toldat length, on account both of its peculiarities, and of itsfurnishing a fair illustration of certain relations between thestate and general governments.
Great Britain was not very learned in the geography of the newworld, in the early days of her colonies there. She gave Virginiaa patent for lands, including what is now Ohio, Indiana,Illinois, Michigan, Missouri, and on to the Pacific. Othercolonies obtained grants of equal moderation as to size, andwisdom as to disposition. This absurd partition, it was found,must occasion irreconcilable quarrels among the members of theconfederation; and Washington proposed that all, after fixingtheir own boundaries, should throw into the common stock the hugeunoccupied domain. Virginia led the way in making this honourablesacrifice. She fixed her own boundary; and the articles ofcompact between the United States and the people of the territorynorth-west of the Ohio river, declared that the territory shouldbe divided into not more than five, nor less than three States.This was in 1787. The boundary prescribed for Ohio and Michigan,was found to be "not convenient." That is, Ohio foundit so; and Michigan was not in a situation, at the time when Ohiowas admitted into the Union, to insist upon the ancient boundary,prescribed at the time of the cession of land by Virginia. WhenOhio was made a State, the boundary she desired was, among otherparticulars, ratified by Congress.
In 1816, another portion of land, lying within what Michigansupposed to be her own territory, was taken from her, and addedto Indiana, on the latter being made a State. An equivalent isoffered to Michigan in a portion of land, to be taken out ofWisconsin, on the western side of Lake Michigan, which is thenatural boundary of the territory. Michigan alleges that theinconvenience of a part of her territory lying on the other sideof the lake would be so great, that the inhabitants would preferbelonging to Wisconsin; and the land would be ceded, as soon asWisconsin becomes a State. The decision of the right of this caseis the proper business of the Supreme Court, whenever thecontesting parties shall have all come into the Union. Meantime,all parties are interested in bearing down the claims ofMichigan. Ohio and Indiana desire to keep the lands Congress hasauthorised them to take. The slave States are anxious to hinderthe increase in number of the free States; and by the ordinanceof 1787, slavery is prohibited for ever, north-west of the Ohio.The slave States hope, by giving to Michigan a slice ofWisconsin, to make Wisconsin too small to be hereafter dividedinto two States. In this object, the south will be foiled. Evenif slavery should exist till Wisconsin is ready for admissioninto the Union, there are two ways by which the desire of thesouth may and will be foiled. By the re-cession of theinconvenient portion by Michigan, as mentioned above; and by thewillingness of these northern States to make themselves smaller,and add one to their number, as, by a proviso in theoriginal compact, they have power to do, than let themselves beoverborne by the south. This part of the contest, for "abalance of power," arises altogether out of the slaveryquestion.
Soon after I entered the country, Michigan became qualified torequest admission into the Union. She did so, declaring herdiscontent with the boundaries prescribed to her by Congress, andher intention to demand, in the Supreme Court, on her admission,the re-establishment of the old ones. I was amused with thedifferent views of the affair presented to me in different partsof the country. At Cincinnati, in June, 1835, I was told that thePresident had just transmitted a threat to Ohio, that if she didnot yield the boundary claimed by Michigan, he would send theUnited States troops to fight it out. It was added that thevice-president had thus far prevailed with the President; itbeing of importance to Mr. Van Buren, that Michigan, which heconsidered in his interest, should be admitted into the Union intime to vote for him in the presidential election of 1836. Therewas much talk at Cincinnati of the resources of Ohio. The peoplewould turn out, to a man. The legislature had instantly voted300,000 dollars to raise troops; and one hundred and fiftythousand men would immediately be in the field: while Michiganhad neither men nor money;--had absolutely nothing to depend uponbut the six thousand United States' soldiers. This seemed to meto be too clear a case to be a very true one: and the eventbelied the story in almost every particular. Michigan did raisemen; (though there was no war:) she had not the United States'troops: she is not in the interest of Van Buren; and Ohio couldbring no troops into the field.
Michigan proceeded to organise her state government, and senther senators to Washington, during the session of 1835 and 1836.They were allowed to witness the proceedings, but not, of course,to vote. When I arrived at Detroit, the capital of Michigan, inthe middle of June, 1836, the Governor told me that theMichiganians were in the singular position of having a stategovernment in full operation, while they were excluded from theUnion. The general opinion seemed to be that some concession mustbe made about the boundary line; in which case, Michigan would beadmitted, in time to vote at the presidential election. I pursuedmy travels through and around the Territory; and when I returnedto Detroit, a month afterwards, 1 found the place in a state ofhigh excitement: an excitement fully warranted by thecircumstances which had occurred.
Congress had acknowledged Michigan to be a sovereign State;and had offered to admit her into the Union, on condition of hersurrendering all claim to the disputed portions of territory.
A grosser usurpation of power can hardly be conceived.Congress here usurped the function of the Supreme Court inpassing sentence against Michigan: passing sentence, too, withouthearing, or having a right to listen to, evidence on the case.Congress here required of Michigan to lay down her rights on thethreshold of the Union, if she meant to be admitted. Mr. Adamsintrepidly declared in the House of Representatives, thatMichigan had more cause to ply the Nullification doctrine thanSouth Carolina ever had. A South Carolina nullifier declared inconversation, that he believed the Michiganians' claims to bejust: but that, sooner than give her the means of summoninganother sovereign State before the Supreme Court, he would votefor her exclusion from the Union as long as he lives. A strangeposture of affairs, where all justice seemed to be set aside, andthe constitution to have become a dead letter!
The anxiety next was to know what Michigan would do. Thereseemed too many symptoms of yielding. It was mournful to thosewho felt that now was the time, now the opportunity, so oftensighed for in the best moments of the best men, for making aheroic stand for the right, to hear the forebodings about thecanal shares, the lake trade, the probable pecuniary loss invarious ways, if there should be delay in the admission ofMichigan into the Union. If we spoke of the constitution, we wereanswered with the canal. If we spoke of patriotism, we wereanswered with the surplus revenue--the share of it that would belost. Then, there were fears of war. We were told that thealternative was--admission, with its advantages, and a surrenderof the contested lands; and exclusion, with war between infantMichigan and Ohio, backed by the United States. The alternativewas rather, admission, with submission to unconstitutional force;or exclusion, with the lonely enjoyment of an honest sovereignty.But this was not the only alternative. Remaining out of the Uniondid not involve war. Michigan might remain out of the Union,peaceably, and under protest, till the people of the UnitedStates should become fully possessed of her case, and aroused todo her justice. It was with heartfelt delight that I found, atlength, that this last honest course is that which Michigan hasdetermined to pursue. It is so common for communities, as forindividuals, to miss the moment for doing the greatest of theirdeeds, to have the bright object of their preceding worshipeclipsed at the critical moment, to pray incessantly that theymay be honest, and then stand aghast, after all, at an honestdeed, that the meeting of the Convention which was to consider ofthis affair, was watched with deep anxiety by the friends ofMichigan. We, their visitors, gathered hope from the tone of theGovernor, and others with whorn we conversed; from the aspect ofthe legislators who were assembled to discuss the Governor'smessage--men with earnest and sensible faces, who looked as ifthey were aware that their liberties were at stake; and from thespirited conduct of Michigan from the beginning of the quarrel.Still, we vere doubtful whether the canal, the surplusrevenue, and the probable war, would not be too much for thefortitude of so young a people. They have shamed our fears, andmade a stand for constitutional liberty, which will secureto them the gratitude of the Union, to the latest day of itsexistence. They have refused to enter the Union on theunconstitutional terms proposed. The people will see that theyare honourably admitted, and that Congress is duly rebuked.
* The Federalist, vol. i. p. 277.
** Correspondence, vol. iv. p. 396.
From Harriet Martineau, Society in America, VolumeI, Part I, Chapter II, Section I - "The GeneralGovernment." London: Saunders and Otley, 1837, pp. 46-69.
Forward to Society in America, Ch. II,Section II, "The Executive."
Back to Society in America, Chapter II -"Apparatus of Government."
Back to Society in America - Table ofContents
Back to the Dead Sociologists'Society Index