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THE

CONSTITUTION
OP

THE UNITED STATES
COMPARED WITH OUR OWN.

By

the

same Author,

Notes on Public Subjects, made during a Tour in the

United States and

in

Canada.

1852.

10s.

6c?.

The Political Experience op the Ancients,
Modern Times. 1852. 2s. 6d.

in its Bear-

ing dpojn
u

A

valuable

ment."

little

book on the philosophy of Govern-

Spectator.

*/
THE

CONSTITUTION

THE UNITED STATES
COMPARED WITH OUE OWN.

HUGH SEYMOUR TREMENHEERE.

.

.

.

>

" juxta sequitur jactantior Ancus,

Nunc quoque jam nimium gaudens

popularibus auris."
Virgil.

LONDON:
JOHN MURRAY, ALBEMARLE

STREET.

1854.
[The AutJwr reserves

to himself the right of authorising a
Translation of this Work.]

c*1

PRINTED BY WOODFALL AND KINDER,
ANGEL COURT, SKINNER STREET

:;5?

CONTENTS.
Page

INTRODUCTION

ix

CHAPTER

I.

Different Principles of Government in the different Colonies while they remained under British

Rule

1

CHAPTER

II.

Progress towards' Independence

CHAPTER
The Revolutionary Government

CHAPTER

22

III.
;

the Confederation

31

IV.

The Constitution

37

CHAPTER

V.

The Preamble

49

CHAPTER

VI.

Necessity of separating; the Legislative, Executive,
and Judicial Powers

58

CONTENTS.

VI

Page

CHAPTER

VII.

The Senate

66

CHAPTER
The House

VIII.

of Represent atives

81

CHAPTER

IX.

Elections

106

CHAPTER

X.

Payment op Members

137

CHAPTER XL
The President's Negative

CHAPTER

168
XII.

The President's Message

CHAPTER

177
XIII.

Powers of Congress

183

CHAPTER

XIV.

The Executive

198

CHAPTER XV.
The Judiciary

248

CHAPTER
Concluding Remarks

XVI.
286

CONTENTS.

Vll

NOTES,
Page

— The over-predominance of any one

Note I.
ment

Note

II.

political ele-

in a Constitution, destructive of freedom

— Extract of Letter from Mr. Jay

to

.

300

Washington,

on the Balance of Power in the new Government.

—President John Adams on the same subject
Note III.—The Tyranny

Note

IV.

— Growing habit of External

Democracy

Note V.

of the Majority

in the rest

.

.

five-sixths of the States,

.

.307

.

.312

and threatened

consequent Danger to Freedom, and to

;

the security of Life and Property

....

— On the same Subject
— On the same Subject. — Abuse of

Note YII.

of Pardoning in the United States

Note YIII.

— On

IX.

316

....

the Transmission of Property in

321

Note

— On

Government

XL — On

Note XII.

327

the Theory of the " Rights of

foundation of political power.
tion of

the Slavery Question

Man"

as the

the true founda-

....

others,

on the Constitution

.

331

337

John

Sentiments of Washington, President

Adams, and

318

the

— On the same Subject

Note X.— On

314

the power

United States

Note

303

.

.

independence of the Judges destroyed in

upwards of

Note YI.

.

Aggression in the

of the United States

—The

.

.

.

344

CONTENTS.

Vlll

Page

Note XIII.

— On

the System of Elementary Education in

the United States

Note XIV.

Additions

349

made

to the Estimates for the year

1852-3, by the Democratic Majority of Congress

Note XV.— List
Note XVI.— List

of Presidents of the United
of States.— Population

.

.

States
.

.

357

.

360

.361

APPENDIX.
An Act

to prevent Frauds upon the Treasury of the

United States

THE CONSTITUTION OF THE UNITED STATES

363

.

368

INTRODUCTION.
The

state of

our representation being probably about

to be considered in the ensuing Session of Parliament,

there will be a natural disposition in

many minds to

take

a survey of some of the other systems of representative

government which, equally with our own, have

for

their object the establishment of a rational freedom.

Such representative governments are indeed but few.
The hopes formed during upwards of thirty years of
peace were dissipated

(it is

by the events of 1848

;

to

be hoped only for a time)

and the

civilised

world has been

compelled to mourn over the failure of nearly
attempts then

made

add to the number of

to

all

the

free go-

vernments, or to widen the foundations of liberty in
those that did exist.

Into the much-disputed question of the causes of
those failures,
Suffice

subject

it

it is

not

to say, that

my

present purpose to enter.

whoever has made them the

of impartial study, must have

found those

latter years of continental history fertile in

to

the peril of delay

reform

is

fully

when

warnings as

the season for

salutary

come, and abounding in examples of

the greater fault, of ruining

all

the hopes of temperate

and reasonable ameliorations, by presumption, precipitancy, or personal ambition.

X

INTRODUCTION.

The

Europe in which
time emerged
out of the struggles of the last six years, or have been
extended and fortified by them, are but few; and we
instances on the continent of

the national liberties have for the

first

could scarcely expect to derive from those cases, or

from the other constitutional governments of the Continent, instruction

soon about to

upon

the particular points which are

occupy us here.

The course of those

changes on the Continent has indeed been watched
attentively in this country,

pathy; and

it

and with much public sym-

has been satisfactory to

observe that

where success has been greatest in the new career of
freedom, as in Sardinia,

it

has arisen from the fact that

her social arrangements have enabled her to

adopt

most nearly resembling our own.
Belgium and Holland have derived strength and confidence from the danger which at one time threatened
them and their free governments have been found to
rest on a secure basis of patriotism and public spirit.
political institutions

;

Denmark,

still

occupied in adjusting her constitutional

powers, has maintained the integrity of her territory,

and has won

for herself a

high place in the estimation

of Europe by her loyal, brave, and constitutional stand
against aggression.*

Norway, depending on her strong

* The battle of Idsted, in which, in 1851, the small Danish
army defeated and destroyed the forces of the Frankfort Parliament, "recruited by many thousands of volunteers from
the Prussian Army, and led by many of the most distinguished
military

men

the occasion,"

most

is

said

scientific battle

Denmark and

by the Prussian Government for
by military authorities to have been the

in Prussia, lent

fought since the peace of 1815.

the Duchies.

1852.)

(Laing's

INTRODUCTION.

XI

national feeling for the preservation

which

suit

of institutions

her circumstances, has remained unassailed.

Sweden has not yet entered upon the long-projected
amendments of her cumhrous political system. Prussia,
together with the smaller
the leading-strings

much

to

of

German

States, are still in

Bureaucracy,

and

have

yet

do towards attaining a well-regulated liberty,

worthy of the great
Portugal

German

people.

Spain and

have made no very apparent progress to-

wards infusing the true

spirit of

freedom into the forms

of free government, which have hitherto in their hands

more than instruments of arbitrary power and
Over the rest of Europe, from the Pyrenees to the Carpathians, the experience that had been
gathered, and the hopes that had been formed of conbeen

bad

little

faith.

stitutional liberty,

and

scattered,

have for the time been overwhelmed

and men have now

to wait the

growth of

maturer councils, or of that solidity and strength of

moral character, and that temper and
political action,

stitutional

self-restraint in

without which the framework of con-

government serves but the purposes of cor-

ruption or oppression.
If from none of the above
political lessons of

particular

review our
tion of

moment, when we

own

we

are likely to derive

any great value

political

to ourselves at this

are about again to pass in

arrangements with the expecta-

amending some few of them, we naturally turn

next to the great community on the other side of the
Atlantic.

We

are led to ask whether the

new form of

free

government, established in the United States in 1789,

INTRODUCTION.

Xll

any

offers

peculiarities

which might be usefully adopted

here, or whether experience has there

brought

any defects in theory or in practice, which

to light

may

be

re-

garded as warnings for ourselves.
Desirable as such an inquiry

moment,

may

it is

may be

at the present

not a very easy matter to pursue

indeed be not

difficult

for

any one

It

it.

possess

to

himself of a copy of the Constitution of the United
States

—a

to refer to

document occupying a few pages only or
it in any work of modern history.
But a

perusal of the document itself will advance

him very

on his way towards understanding the objects at
which it aimed, the reasons on which it was founded,
little

the contrasts and analogies
to

all

previous

it

presents to our

own and
and the

forms of free government,

lessons to be learnt from the sixty-five years of ex-

perience to which

To
citizen
to

attain

of

it

that

the

has now been subjected.

knowledge,

United

States

even any intelligent

must have recourse

voluminous and learned works, which require time

The principal of these are
and study to master.
the " Commentaries" of Mr. Justice Story, and those of
Mr. Justice (afterwards Chancellor) Kent, the
three, the second in four thick octavo volumes.

first

in

Next

in value and importance, are the papers forming the
collection of the "Federalist," written

by some of the

leading statesmen of the time of the separation from
this country.

Equal

to these is the very learned

and

admirable "Defence of the American Constitutions"
against the attack of
afterwards

the

M.

second

Turgot, by Mr. John Adams,
President of

the

Republic.

INTRODUCTION.
(London,

New

Xlll

Edition, 1794, 3 vols.)

Then

follow

the numerous volumes of reports of the decisions of the

Supreme Court of the United States

also various other

;

books of legal authority, such as Tucker's edition of
"Blackstone's Commentaries;" and, lastly, the masterly

by M. de Tocqueville, of the

analysis

I

social

and

poli-

condition of the people of that country.

tical

am

not aware that any attempt has been made to

place before the public in this country in an accessible
shape, the Constitution of the United States, set in the
light

thrown upon

it

by some of the highest minds
illustrated by some

which that country has produced

;

portions of the experience which time
forth;

has brought

and contrasted with those principles and practices

which we cherish as the main supports of our system
of constitutional government.
It appears to
this task

me

that there are public reasons

should be undertaken at this period

the risk of executing

it

;

why

and

at

imperfectly, I venture to put

together the results of such reading and personal in-

quiry

as,

during some years past, I have from time to

time been able to bring to bear upon the subject.

I purpose following very nearly the arrangement of
his " Commentaries," and shall,

Mr. Justice Story in

in the first place, state in as
is

consistent with

compendious a manner as

clearness,

the

substance

learned judge's remarks and opinions,

most important

To

of that

upon each of the

articles of the Constitution.

where desirable, the observations
of the authors of the " Federalist," and also those of
this I shall add,

Mr. Justice Kent, under the same heads, together with

INTRODUCTION.

XIV

extracts from any other writers

may seem worthy

whose

facts

and opinions

of consideration in connection with

those of the above principal authorities.

And,

take occasion to point out the

finally, I shall

essential differences

between the system of government

in the United States and our own,

and draw such con-

clusions from those points of difference as the facts

may justify, and
mind
work

may seem

as

important to be kept in

when we are about to touch
our own system with a view to

at a time

of

the frameits

further

amendment.
It is proper to say a

word or two more

as to the high

character of the American works which I

am

about to

follow.

The " Commentaries
the head of

all

"

of Professor Story stand at

the writings on the subject of the

American Constitution, and, in conjunction with

his

other works, have acquired for their learned author a
judicial authority of the first order throughout Europe.

He

was appointed in 1811 one of the Justices of the
Supreme Court of the United States. He also obtained

the
sity,

"Dane"

Professorship of

Law

in

Harvard Univer-

near Boston, and in that capacity published his

" Commentaries on

the

States," in the year 1833.

quoted from

is

the

last,

Constitution

The

of the United

edition which I have

that of 1851.

These Commentaries occupy the

(Boston.)

same place

in

an exposition of the Constitution of the
United States, as is occupied by " Blackstone's Com-

literature as

mentaries upon the Constitution and

England."

They

Common Law

are conspicuous for their

of

calm tone,

;

INTRODUCTION.
correct style, and
careful research

XV

measured language, no

and

less

strictness of reasoning.

than for

Though

a faithful citizen of the United States, and a patriotic

admirer of the main principles of her Constitution, he
hold to disguise his disapproval of what he

too

is

deems imperfections, too honest to conceal his fears,
and too sincere a lover of truth to shrink from or
pervert

Next

it.

"Commentaries" of Mr.
Judge of the Supreme Court of New
York, and Professor of Law at Columbia College in
the same State.
This voluminous and learned work is
chiefly occupied with comments on the common law
in authority are the

Justice Kent,

but the considerable portion devoted to the Constitu-

by
work of
is, under ?ome heads, more
valuable notes bringing down

tion of the United States is not less characterised
a"

spirit

of fairness and truthfulness than the

It
Mr. Justice Story.
copious, and abounds in
the experience of the working of the Constitution
the year 1844 *

But

the

great sources of

constitutional

to

doctrine

from which these and other writers have alike " drawn

by

far

the

greatest

part

of

their

most valuable

"The Federalist," t an "incomparable
commentary of three of the greatest statesmen of their
age" (Mr. Madison, Mr. Hamilton, and Mr. Jay) and
also the highly-esteemed judgments of Chief Justice
" The former have
Marshall upon constitutional law.

materials," are

;

discussed the structure and organisation of the national

* New York. 1844.

t

New

York. 1802.

INTRODUCTION.

Xvi
government, in

and

fulness

application

and

departments, with admirable

its

all

The

force.

limits

latter

of

its

with unrivalled profoundness and
are to he

has

expounded the

powers and functions
felicity."

*

To

these

added the Keports of Dallas, Crank, and

Wheaton, of the decisions of the Supreme Court of
the United States

;

other collections of judicial reports,

and the statutes of the various States

;

Eawle on the

Constitution; and the journals of Congress.

Museum

found in the British

had not

Of

at

all

I have

of the above which I

hand.

the works of

sary to speak.

M.

de Tocqueville,f

it is

unneces-

Their accuracy and impartiality are as

universally acknowledged as the high powers of obser-

vation and analysis which they display.
I shall have occasion to notice

more recent

facts

which have come before the public since the date of
these several writers, partly collected by myself in that
country in 1851, partly obtained since, chiefly from
public sources of information.

From

the materials derived from the above sources,

I shall draw any inferences and institute any compari-

sons which
to

may

strike

me

as instructive,

and desirable

be borne in mind in this country.
January, 1854.

*

Story.

Preface, p.

1.

Democratic en Amerique, published in 1835, Translated by Henry Reeve, Esq. 2nd Edition, 1836. Second Part

t De

of

la

M. de Tocqueville's Work,

Paris, 1840.

THE

CONSTITUTION
OF

THE UNITED STATES
COMPAEED WITH OUB OWN.

CHAPTER

I.

DIFFERENT PRINCIPLES OF GOVERNMENT IN THE
DIFFERENT COLONIES WHILE THEY REMAINED

UNDER BRITISH RULE.
Political reasonings upon the
country,

and speculations

as

to

state
its

of

a

future

course, are too apt to be conducted without
sufficient

reference

This appears

to

to

its

previous

history.

be frequently, and perhaps

not altogether unnaturally, the case with respect to the United States;

for the present

vast proportions of that great

community have,

in their rapid growth, shut out the view, and

very nearly extinguished the thought, of

all

DIFFERENT PRINCIPLES OF GOVERNMENT

c

2

[oh.

i.

that lies in the obscurity of the past beyond

them.

But neither the
States,

nor the

state of society in the

United

spirit of its Constitution,

can be

thoroughly understood or properly appreciated
without a previous knowledge of the different
principles of government

which prevailed in

the different States while they remained under
British rule.
I propose,

therefore,

chapter, to give a very

in

this

introductory

summary sketch

of the

constitutional arrangements that existed in the

American

colonies before their separation from

the mother country.

The Governments

of the original thirteen

States are described

by Judge Blackstone in

his

"Commentaries," as Provincial, Proprie-

tary,

and Charter Governments.

description,

though correct in an

But

this

historical

point of view, and interesting in reference to

the various steps and processes in the settle-

ment of that country,
causes,
Story,

affords

no key

to those

which, in the words of Mr. Justice

"have impressed upon each colony

ch.

m THE DIFFEKENT COLONIES.

I.]

peculiar

attachments,

opinions,

habits,

3

and

even prejudices." *

The

existence of those

opinions,

different

and attachments,"

of the Union,

is

" habits,

in different parts

very generally overlooked in

a superficial view of the state of things in that

That they exercised great

country.

at the time of the separation

from

influence

us, in deter-

mining the kind of government then adopted,
there can be no doubt.

And

they have not

ceased to act powerfully, in a social, as well
as a political point of view,

up

to the present

day.

Those

differences are traceable to the dif-

ferent forms of

government originally given

or adopted by, the different States
ther,

to

;

and

to,

fur-

their adoption with greater or less

strictness, or their rejection, of the principle

of the English

common law

in regard to the

descent of property.

Ten
sessed,

out of the original thirteen States pos-

down

to

the time of the Revolution,

forms of government,

all

* Page

of which, with
1.

B 2

some

CONSTITUTION OF VIRGINIA.

4

[oh.

i.

varieties of detail, bore as strict a resemblance

own

to our

as

stances of a

was possible under the circum-

new

They may

country.

described as moderate

constitutional

The governor was
sentative
and the Crown

ments.

;

council,

which was

to

all

be

govern-

the king's reprealso

appointed a

a certain extent an

upper house of legislature

;

not invested, how-

ever, with independent legislative power, but

acting as a consultative body and in concur-

On

rence with the executive.

the other hand,

the principle of popular freedom was recognised, in the authority given to the governor

"

to

convene a general assembly of representa-

tives of the freeholders

and planters."

provincial assembly thus constituted,
(in the

make

The

had power

words of the different charters) "to

local laws

to the laws of

and ordinances not repugnant

England, but as near as

may be

agreeable thereto, subject to the ratification or
disapproval of the Crown."

The

States that possessed this form of go-

vernment were Virginia, Massachusetts
cluding

New Hampshire

(in-

and Maine), Mary-

ch.

CONSTITUTION OF VIRGINIA.

i.]

New

land,

New

York,

5

Jersey, Pennsylvania,

Delaware, North Carolina, South Carolina,

and Georgia.

Of

these, it is only necessary to advert in

any detail

to the first two.

Virginia, " the

made

in

first

permanent settlement

America under the auspices

land," under the Charter of

Thomas Gates and

James

of
I.

Engto Sir

his associates, in the vear

1606, possessed originally, in accordance with
the limited views of the age in those matters,

very few political rights.

But

in 1 61 9, a re-

presentative assembly was called together by

the governor; and in 1621, the council of the

company
act,

in

England gave permanence

by an ordinance vesting the

power, " partly in the governor,

to this

legislative

who held

the

place of the sovereign, partly in a council of
State

named by

the company, and partly in

an assembly composed of representatives freely
chosen by the people."
force

" until

ratified

No

law was to be in

by a general court of the

company, and returned under
colony."

And

the

ordinance

its

seal to the

" further

re-

CONSTITUTION OF VIRGINIA.

6

quired

the

and

general assembly,

council of State,

to

[ch.

i.

the

also

and follow the

imitate

policy of the form of government, laws, cus-

toms, and

manner

of

trial,

and other adminis-

tration of justice used in the realm of

may

as near as

be."

Although

government was shortly
process of

after

"quo warranto"

;

form of

overthrown by a

(1624),

it

was

re-

same form by Charles

established in nearly the
I.

this

England

and the Revolution of 1688 found the

colony, " if not in the practical possession of
liberty, at least

with forms of government well

calculated silently to cherish

The

#

course of public opinion in Virginia

strongly

marked by two circumstances

—the

legislation of that colony

the

its spirit."

Church

in the

supremacy of

and the

of England,

is

strictness of

entails.

By

one of the earliest Acts of the colonial

legislature, the

blished, "

and

Church

its

of

doctrines

The

strictly enforced."

England was

esta-

and

were

discipline

clergy " were amply

provided for by glebes and tithes," and " the
*

Story, § 49.

CONSTITUTION OF MASSACHUSETTS.

ch. l]

7

performance of parochial duties peremptorily
"

The

first

law allowing toleration

to Protestant dissenters

was passed in the year

required."

1699;"

but, subject to this,

England seems
sive

to

"the Church

of

have maintained an exclu-

supremacy down

the

to

period of the

American Revolution." *

With regard

to entails,

an Act was passed

in the colony in 1705, to prevent their being

barred by the ordinary process of fine or re-

and requiring " a special Act of the

covery,

legislature in each particular case."

Though

subsequently modified so as to exclude small
estates

under 200/. in value, the general law

remained in force to the period of the Revolution

;

and,

" in

this

the colony to secure
inheritances

in

the

respect, the zeal of

entails

and perpetuate

same family outstripped

that of the parent country."*

Massachusetts obtained from William and

Mary,
which

in the year 1691, the Charter,
its

under

government was conducted down

the time of the Revolution.
* §50.

The

charter

to
is

8

-

CONSTITUTION OF MASSACHUSETTS.

[ch.

i.

described by Story as containing a liberal grant

and a reasonable

of authority to the province,

reservation of the royal prerogative.

The principle of popular freedom had already
taken deep root in Massachusetts, and in the
other

New

England

colonies

this charter incorporated

which were by

with

it.

There are

few events in history more striking and eventful

than the landing of the small band of

refugees

from

religious

Pilgrim Fathers,"

—on

persecution

—"

the

the bleak and forbid-

ding shores of Cape Cod, in the winter of
1620, and their

first act,

their

drawing up and

signing their simple and voluntary compact of

government.

By

" cove-

this instrument they

nant and combine themselves together into a
civil

body

politic, for

preservation,

the better ordering, and

and furtherance," of the ends

they had in view,

—namely, the

founding of a

colony "for the glory of God,

vancement of the Christian

and the ad-

faith,

and the

honour of their king and country."

And

although they subsequently applied for and
obtained from the Plymouth

Company in Eng-

CONSTITUTION OF MASSACHUSETTS.

cm. l]

land, such
to

power

as that

9

company could

confirm their legislation,

they never

yet

received any powers from the

give,

Crown

itself,

but continued to exercise, under their original
compact, " the most plenary executive, legislative,

and

judicial authority," until they were

incorporated with the province of Massachusetts

by the charter above mentioned, in 1691.

In a similar

spirit the

from Charles

I.

company

that obtained

the Charter of 1628, consti-

tuting them a body-politic, under the

"

The Governor and Company

setts

Bay, in

New

title

of

of Massachu-

England," (in continuation

of the Charter of 1620, to "

The

council esta-

blished at Plymouth, in the county of Devon,
for the planting, ruling, ordering,

ing of

New

and govern-

England, in America,")

first

took

the bold step of transferring themselves and
their charter to the territory granted to them,

and next proceeded

to

extend their acts far

beyond the expressed powers of government
granted by that charter, which they would not

admit as " furnishing any limit

to

them upon

the freest exercise of legislative, executive, or

b3

CONSTITUTION OF MASSACHUSETTS.

10

" They did not view

judicial functions."

creating

an English

corporation

[ch.

it

i.

as

under the

narrow construction of the common law, but
as affording the
political

means of founding a broad

government, subject to the Crown of

England, but yet enjoying many exclusive

pri-

vileges." #

The Charter of 1691

strengthened this union

of free legislative action with the reasonable

" It reserved

prerogatives of the Crown.
the

Crown

to

the appointment of the governor,

and secretary of the
"
provided for the appointand

lieutenant-governor,

province j"

ment of twenty-eight

councillors,

chosen by the general court."
court was

to

who were

This general

consist of " the governor and

council for the time being, and of such representatives being freeholders as should be an-

nually elected by the freeholders of each town,

who

possessed a freehold

of

forty

shillings

annual value, or other estate to the value of
forty pounds."

" Each town was entitled to

two representatives," subject
*

§§

M.

67.

to alterations in

1

ch. l]

this

CONSTITUTION OF MASSACHUSETTS.

1

number, which might be introduced from

To

time to time by the general court.

the

governor was also reserved the right of " nominating, and with the advice of his council,

appointing to

military

all

those of the Court

of

which were reserved

and judicial

Admiralty excepted,

to the

Crown.

general court was invested with
levy taxes,

" and make

and ordinances,

so as the

offices,

all

full

And

the

power

to

wholesome laws

same be not repug-

nant or contrary to the laws of England."

" All laws, however, were to be sent to England for approbation or disallowance,'' and

Crown

disallowed by the

if

within three years,

they were to become void.*

Under

the previous charters, and

legislation

by the

took place by authority of

that

them, most of the " public rights of English-

men," known in those days, were secured by
the colonists.

whatever

Under

which was

Charter of 1691,

had been omitted were gra-

liberties

dually introduced

this

;

a " Habeas Corpus" Act,

at first disallowed,

*

§ 71.

having been ex-

CONSTITUTIONS OF OTHER STATES.

12
tended

[ch.

i.

Queen

to the colonies in the reign of

Anne.
Entails were recognised by the law, but not

encouraged by the policy of the State.

Never-

theless, the principle of preferring the eldest

son was so far admitted, that in cases of intestacy a double portion

was assigned

to

him.

In regard to ecclesiastical matters, liberty
of conscience

1691,

"to

was granted by the Charter of

all

Christians,

except Papists;"

and " ample provision" was made " for the
congregational church, exclusive of all others."*

The above were
government and

others

colonies ;"

two "

ori-

and the eight

already enumerated f followed in the

same general
first

legislation in the

and parent

ginal

the general principles of

course.

Maryland received

Charter in 1632, and

assembly was held in 1634.

its

its

first legislative

Its charter is re-

markable as containing no clause requiring
the

transmission of the laws

province, to the Crown, for

York,

at the

its

passed in the
approval.

Revolution of 1688, declared
*

§ 71.

t Page

4.

New
itself


;

CONSTITUTIONS OF OTHER STATES.

ch.l]

13

entitled to all the privileges of British subjects,

and in 1691, on the arrival of the governor
appointed by the Crown, proceeded to
legislative

call

a

assembly, and to pass Acts decla-

ratory of their rights and privileges as English-

New

men.

Jersey, in 1664, adopted a similar

form of government, which was continued by

Queen Anne,

the Charter of
sylvania

dates

its

of 1702.

Penn-

government, of the same

form, from 1681, and Delaware from 1703

North Carolina from 1662,

lowed the impracticable, highly
constitution of
interval from
after

which

after

aristocratic

John Locke, which

1669

to

some intervening

the constitution of 1720

fol-

filled

the

1693, and which was,
troubles, succeeded
:

by

South Carolina dates

her constitution from 1732, and Georgia from
the year 17<51.*

And

in these

property was

same

—in the

most important of

States,

largest

them

the descent of

and perhaps the

in

New

North and South Carolina, and

in

York, in

Georgia

the same as in England, and remained the
*

§§ 74 to 145.

4

CONSTITUTIONS OF OTHER STATES.

1

same in the Carolinas
In

New

descents

of

the year 1791.

appears

was more

have

to

but exclusively followed

New York

l

" the common law

York, indeed,

course
silently

until

[oh.

been

and perhaps

;

close in the

adoption of

the policy and legislation of the parent country
before the Revolution than any other colony."*

In Pennsylvania, Delaware,
mouth,
to

New

Ply-

the eldest son, in case of intestacy,

The

have a double portion.

among

and

was

sole exception

these States to this course of policy was

Maryland, in which estates were made partible

among

all

In

this

the children.
large

group of

States,

therefore,

comprising ten out of the original thirteen, a

moderate system of representative government,
with a

full

acknowledgment of and acquies-

cence in the due prerogatives of the Crown,
subsisted

from

the

period

down

charters of government,
ration

from

this country

time, during the whole

of

;

and

their

first

to their sepa-

at the

of that period,

same

em-

bracing, in most of the cases, upwards of a
*

§ 114.

5

ch. l]

CONSTITUTIONS OF OTHER STATES.

century, the habits

and

feelings

1

engendered by

such a form of government, and by the descent of property in

more or

less strict con-

formity with the custom of the mother country,
existed in full force in each of those colonies.

The remaining

three only of the thirteen

—New Plymouth, Connecticut,
Island— were

original colonies

and Rhode

in

their

The

ganisation thoroughly democratic.
these,

the

first

or-

first

of

brave and hardy colonists before

mentioned,* in number only forty-one adult
males,

who landed

of an

American

at

Cape Cod

winter,

in the depth

drew up and signed

before their landing, on the 11th

November,

1620, the memorable compact by which they
established for themselves a simple form of go-

vernment,

" in

its

essence a pure democracy,"

and under which they proceeded
vernor and other

officers,

and

to elect a go-

to enact laws.

Connecticut, or rather the three towns that then

formed the State, framed in 1638
stitution,

by which

it

its

own

con-

was provided that there

should be two general assemblies annually, and
* Page

7.

6

CONSTITUTIONS OF

1

NEW PLYMOUTH,

[ch.

i.

that "there should be annually elected by the

freemen, a governor and six assistants, and as

many
site.

other officers as might be found requi-

The towns were

to

send deputies to the

general court, apportioned according to the

number

of freemen

in which general court

;

was vested the supreme power
ecutive,

and

judicial.

Rhode

legislative, ex-

Island, settled

by refugees from the religious tyranny of the
Independents of Massachusetts,
established
selves,

1636-8,

in

a form of government for them-

which was subsequently confirmed

the main by the Charter of Charles II.

;

in

a

charter whicb, with the characteristic indiffer-

ence of the day, sanctioned the democratic
principle of the election of the governor
all

the other

official

power was vested

persons.

in

The

executive

the governor,

governor, and ten assistants

;

and

deputy-

the legislative in

the general assembly.

Although the

New

Plymouth

colonists soon

sought the aid of the authority of the Crown
in support of their legislation,

colour of delegated

and " under the

sovereignty" (a Charter

ch. l]

from

CONNECTICUT,

AND EHODE

ISLAND.

Plymouth Company

the

in

17

England,

which was never recognised hy the Crown),
exercised

all

the powers of government until

they were finally incorporated with the province
of Massachusetts under the Charter of Wil-

liam and Mary, in 1691
necticut,
title,"

and although Con-

;

" aware of the doubtful nature of

its

obtained in 1662 a Charter of govern-

ment from Charles

II.,

and Rhode Island, in

the same manner sought the support of the

Crown, as above adverted
their bold

to

;

the example of

and independent course,

in found-

ing for themselves a form of government resting on the broadest principles of

civil

freedom,

strengthened the spirit of liberty, which had
already a legitimate field of action in

Rhode

other States.

the

Island also "enjoys the

honour of having been,
least

all

if

not the

first,

at

one of the earliest of the colonies, and

indeed of modern States,
of conscience,

in

which

liberty

and freedom of worship, were

boldly proclaimed

among its fundamental laws."

The

charter, on the petition of the inhabit-

ants,

for

"

full liberty

in religious

concern-


CONSTITUTION OF EHODE ISLAND.

18

[ch.

i.

ments," declares the royal will and pleasure,

" that no person within the colony

shall be

any

wise molested, punished, disquieted, or called
in question, for any differences in opinion in

matters of religion."
It

is

remarkable, that in

Rhode

Island,

notwithstanding the democratic principles on

which its constitution was founded, the counterbalance of the law of entail was maintained

Mr.

with the greatest tenacity.

Justice Story

thus describes the general course of legislation

on that subject

:

" In respect to the descent of real estates, the canons of

the

common law were

adopted, and the eldest son took the

whole inheritance by primogeniture.
a short period repealed by an Act (4

which divided the estate among

bation,

(in

&

5.

Geo.

I.,

1718),

the children, giving

But the common law was

the eldest son a double share.

soon afterwards

all

This system was for

1728) reinstated by the public appro-

" as necessary to prevent the destruction of family

estates,"*

and

so

remained

to regulate descents until a

short period (1770) before the Revolution." f

Connecticut also directed, that in cases of
intestacy in respect to real estate,
*

§ 101.

t

§ 100.

a double

ch. l]

DEDUCTIONS FKOM THE ABO YE PEINCIPLES.

portion should go to the eldest son
original

New

Plymouth

colonists

;.*

19

and the

had no other

"general hasis of their jurisprudence than the

common law

of

England;" which, though

varied to meet " their stern notions of

the

absolute and universal obligation of the

Mo-

saic institutions,"!

was revived in

when they submitted

to

full force

come under the same

law as Massachusetts.
Reviewing, therefore, the principles of go-

vernment on which the States of the Union

had been founded, and were acting
of the Revolution,

at the

time

and considering how de-

cidedly the custom of entail was supported by

the legislation and by the prevailing sentiments
of

some

of the largest

and most important of

them, was recognised in nearly

all

the rest, and

was prevented by law in only one (Maryland),
it

can be no matter of surprise that one of the

leading statesmen of the time,
in a letter to

Mr.

Jay, should,

Washington, of January J 1787>
9

while their future Constitution was yet un-

decided upon, advert to these
*

§ 93.

t

facts,
§ 55.

and urge

20 DEDUCTIONS FROM THE ABOVE PRINCIPLES,

them

[ch.

i.

in argument, stating that the proposed

government
to their

for

Union should be suited

the

manners and circumstances, "which

are not strictly democratical ;"* or that

John Adams,

same

in the

Mr.

year, should follow

a similar line of argument, founded on the
fact of

number

the

of persons of large

and

hereditary possessions then existing through-

out

all

in

the

the thirteen
strongest

States.!

light

places also

It

amount

of

the

character

of

the

the

provocation,

the

injustice, the

blind perseverance in error on

glaring

the part of this country in opposition to
best

and most eloquent statesmen, which must

have

been required to

which had

much
to

in

for so

many

generations been so

minds

institutions

provoke

much

as the

and the glory of the country from

which they sprung.
* Correspondence
Jared Sparks.

to

and hearts that knew

nothing to love and venerate so

of the

All this must have been
American Revolution, by Professor

Boston, 1853.

Vol.

iv. p.

t Adams's Defence of the American
4.

sympathies

alienate

harmony with our own, and

resistance

Letter

its

136.

Constitution, vol.

iii.

ch.

i.]

DEDUCTIONS FROM THE ABOVE PRINCIPLES. 21

needed

to cause

principles of

an ear

to

be lent

government which emanated from

the temporary disappointments and
of

to those

ill

Locke, and from the moral and

anarchy of the French school

new

to the experience of

social

which were

;

mankind

usage

which

;

find

no warrant in the best and greatest republics
of antiquity

and which, whatever may be

;

their intrinsic merits,

and their adaptation

to

the circumstances of so vast an extent of territory

occupied

that

as

occupied

by

the

and waiting

United

States,

to

were

be
not

adopted (as will be hereafter shown) without
the gravest misgivings on the part of some of
the wisest

men

of the Revolution

;

which are

varied already in some important respects from

what they sanctioned

;

and are regarded with

anxiety for the future by

many

of the most

enlightened American citizens of the present,
as they

were of the past, generation.

PROGRESS TOWARDS INDEPENDENCE.

22

CHAPTER

[ch. n.

II.

PROGRESS TOWARDS INDEPENDENCE.

That

communities, founded and nurtured as

above described, should have combined to
oppression, was no

more than

natural,

resist

and

is

a

circumstance in the history of our race, at
which, with Lord Chatham, "in the

name

of

common liberties and common character,
we may be permitted to rejoice," however
much we may still lament the errors and preour

judices which obscured the

judgment of

this

country at that important period.

The
public

marked

steps

mind

which gradually prepared the
in

America

for resistance,

and

their progress towards independence,

require to be briefly adverted

to,

because they

ch. il]

PROGRESS TOWARDS INDEPENDENCE.

23

take their origin from a time long prior to
that of the ultimate cause of disagreement and
separation.

The

favourite

democratic

theory

of

the

foundation of the civil rights of the Ameri-

can colonists

according to Jefferson and

is,

others holding similar extreme opinions, that

they brought with them " the rights of men,"
of " expatriated men."

There

no need

is

to

repeat the well-known refutations of this as-

sumption, and to show that there
tion in reason or history for
political rights

any such abstract

be found

to agree in de-

what they mean, and how

be extended.

no founda-

and that no two men, gene-

;

rally speaking, can

fining

is

far they

may

It is sufficient for the present

purpose to refer to the authority of the best

American lawyers, who are agreed upon
ing their
finite

Story

and

civil rights

the

versal principle

formed to
(of

upon a much more de-

intelligible principle.

states

it)

England)

matter thus

:

Mr.

Justice

— " The

uni-

(and the practice has con-

has been, that the
is

rest-

common law

our birthright and inheritance,

PROGRESS TOWARDS INDEPENDENCE.

24

[ch.

ii.

and that our ancestors brought hither with
them, on their emigration,

all

of

applicable to their situation."*

it

which was

This

the opinion of the Congress, as laid

also

was

down

in

their celebrated Declaration of Rights, of the

They unanimously

14th of October, 1774.
resolved,

"That

the

respective colonies are

common law

entitled to the

and that " their ancestors

of England,"

*

#

at the time of their

emigration were entitled" (not to the " rights of

men," but) "

to all the rights, liberties,

and

immunities of free and natural-born subjects
within

the realm of England."

And

they

further resolved, "that they were entitled to

the benefit of such of the English statutes as
existed at the time of their colonisation,

and

which they have by experience respectively
found to be applicable to their several and
local circumstances."*

This being
early assumed

so,

the

American

colonies very

the right in their legislative

assemblies to deal with both the
statute law according as
*

common and

their circumstances

§ 194, note.

PE0GEESS TOWAEDS INDEPENDENCE.

ch. il]

required.
legislative

The

only

limitation

25

upon

their

power was contained in an express

clause of all their charters, to the effect that
their laws should not be repugnant, but, as

near as might be, agreeable to the laws and
statutes of

of

sition

"A

England.

seems, however," says

clause

this

very liberal expo-

Mr.

Justice Story, " always to have prevailed,

and

to

have been acquiesced

The

by the Crown."*

mon

in, if

not adopted

only part of the com-

law which they were in practice restrained

from altering was that which related
allegiance,

and of the

statute law, those

and by which they

were

;

limitation confined

it

regulations

to this

in theory, if not at first

in practice, to matters of trade
to

to

expressly

bound t and the interpretation given

and

Acts

which particularly related

of Parliament

them,

to their

and commerce,

which bound them in a

general system as integral parts of an empire. t

These rights

of independent

steadily vindicated,

their
*

action

they

and indeed extended, in

constant refusal to submit to taxation

§ 187.

t

7

&

8 Will. IIL

c

22. § 9.

t

C

§ 173.

PKOGKESS TOWAKDS INDEPENDENCE,

26

without

their

own

consent.

colonies

very

early

asserted,

to act upon, that principle

;

Some

ence

Navigation

the

to

the

of

and attempted

as Massachusetts

1640; and in 1651 and 1660

in

[can.

in refer-

And

Acts.

al-

though that State frequently in subsequent
years,

and

as late as the year 17«57>

acknow-

ledged the general supremacy of Parliament,*
she excepted the case of submitting to taxa-

And

tion without her express consent.

the

even

southern States, which were in general

most disposed

to recognise the authority of the

Crown and Parliament, " denied

the right

to.

tax them internally to exist anywhere but in
their respective legislatures." f

The

passing of the

gave a further impulse

Stamp Act

in

1765

to this feeling of inde-

pendence, and strengthened the determination
to assert

it

;

and although that Act was

wards repealed,
raise a revenue

*

Story, § 188.

+

§§ 189, 190.

the

subsequent

after-

attempt to

on importations into the

colo-

Declaration of the Congress of the Nine

Colonies assembled at

New

York, October, 1765.

PROGRESS TOWARDS INDEPENDENCE.

ch.il]

27

nies was as strenuously resisted as the former

mode

In the glowing words of

of taxation.

Burke, " They augured misgovernment at a
distance,

and snuffed the approach of tyranny

in every tainted breeze."

One

of the features most noticeable at the

commencement

of this great struggle,

moderation of the language

is

the

and conduct of

the colonists, which was as conspicuous as the
firmness with which they persevered in vindicating their rights and liberties.

This mode-

ration in the midst of so great a crisis, which,
if it

had been met

people

in a similar spirit

of England,

by the

would have altered the

whole character of the course of events,
traceable to
tical

and

many

social

which ought not
the present day.

by

far the greater

stitutions

owed

is

circumstances of the poli-

existence

of

the

colonists,

to be lost sight of

even in

As has been shown
number

above,

of the colonial con-

their origin to

no extreme

poli-

tical

views and opinions

rate

and temperate admixture of the several

;

but, in their

mode-

powers of government, were very similar
c 2

to

28

PROGRESS TOWAKDS INDEPENDENCE,

[can.

the constitutional system which had heen gradually acquiring strength and consistence in

The

the mother country.

Crown were

clearly defined

prerogatives of the

and cheerfully

re-

cognised in the proprietary and charter governments, and although attempts at aggres-

Crown

sion on the part of the

in the provincial

governments were met hy the strenuous and
successful opposition of the provincial assemblies, yet

even in the latter governments most

of the well-established
tives

and ordinary preroga-

The

were exercised without dispute.*

representative system was organised on a

mo-

derate basis, and consisted for the most part
of two portions
ers,

the

;

one elected by the freehold-

other, or the

council to assist the

governor, nominated by the Crown.
larity of social institutions

nies

The

simi-

between the colo-

and the mother country was kept up

throughout the whole of the southern States,

and in Rhode Island among the northern, by
favouring the custom of primogeniture and the

law of entails; and even in the rest of the
*

§ 160.

ch.il]

PROGRESS TOWARDS INDEPENDENCE.

29

northern States the principle was recognised
to a certain extent,

by assigning a double por-

To

tion in case of intestacy to the eldest son.
this there

was but one exception, that of the

The

small State of Maryland.
ence,

long exist-

and the general predominance through-

out the Union, at the time of the Revolution,
of

and

political

social

institutions

which should not be

these,

are

gotten,

inasmuch as they account

facts

such as

English tone of mind

(if I

may be

for-

for the very

allowed the

expression) of most of the leading American

statesmen of that day, which resulted also in
part from an education and training, in most
respects, entirely English.

They account

also

for the elaborate system of checks against the

encroachments of ultra-democracy introduced

much

into the Constitution with so

caution by those
existence in

it

who drew

it

up,

of such strong

care and

and

and

for the

carefully-

guarded conservative elements, which appear
to

be commonly overlooked by modern

cians of the extreme school.

explanation also of

the

They

politi-

afford

an

phenomenon which

PROGRESS TOWARDS INDEPENDENCE,

30

strikes a stranger in the

[can.

United States even

at this day, namely, that of the strongly aris-

tocratic organisation

in

that

country

;

and feeling of

social life

wherein are seen ancient

sympathies, strong and irrepressible associations,

instincts

of cultivation

asserting their empire,
level attempted to

habits
theory*

and

of nature,

and rising above the

be maintained by forced

and a specious

but

unphilosophical

cam.] THE REVOLUTIONARY GOVERNMENT.

CHAPTER

31

III.

THE REVOLUTIONARY GOVERNMENT.— THE CONFEDERATION.

Before examining the

details of the Consti-

tution, it is necessary to advert briefly to the

course of events that immediately preceded

it.

All attempts at reconciliation having failed

on both
States,

sides, the

legislatures of

some of the

and conventions of the people

in others,

proceeded to appoint delegates, who assembled

on the 4th September, 1774, and formed the
first

general and national Government, com-

monly known, from

its

origin, as

" the Revo-

lutionary Government."

Having adopted a Declaration
passed Acts forbidding
tions

all

of Rights,

commercial

rela-

between themselves and Great Britain,

authorised the raising of troops, and appointed

THE REVOLUTIONARY GOVERNMENT,

32

[ch.

m.

General Washington as their commander-inthey embarked upon the great struggle,

chief,

and

finally,

on the celebrated 4th of July,

1776? published the Declaration of Independence.

The powers

of the Revolutionary Govern-

ment being vague and

doubtful,

discussions

arose

and were continued during the next few

years

among

the several States, and

it

was not

March, 1781, that the whole
assented to the " Articles of Con-

until the 1st of

of the States

federation," prepared

and digested by a Com-

mittee of Congress.

On

ratification took place,

that date the final

and the Government of

the Confederation was announced and recognised.
Still,

however, the defects in the political

arrangements then agreed to were many and
patent.

"

To

form a permanent union," re-

marked the Committee above
commodated

to the opinions

delegates of so

many

referred

to,

"

ac-

and wishes of the

States, differing in habits,

produce, commerce, and internal police, was

found to be a work which nothing but time

THE CONFEDERATION.

ch. hi.]

and

reflection, conspiring

conciliate, could

33

with a disposition to

mature and accomplish."

It

was not a matter capable of being " struck
out at a heat," and required the patience and
the wisdom of

men accustomed

to

look at

all

the sides of great and complicated questions,

and the experience

them

of years to enable

to

gather new counsel from novel circumstances.

" Although," says one of the able men who
took a leading part in those proceedings, Dr.

Rush, " we understood perfectly the

princi-

ples of liberty, yet most of us were ignorant

of the forms and combinations of republics."*
It

need

not, therefore,

be a matter of surprise

that inexperience on the one hand,
jealousies of individual

and the

States on the other,

should have combined to render the powers
entrusted to the Confederation imperfect, and
to

hamper

its

to cause it to

ment

in

name

action to so great a degree, as

be

little

only.

It

more than a governhad no authority

to

levy taxes, no power to enforce obedience, no

means

of regulating foreign or domestic com-

*

Story, § 244, note.

c 3

;
;

THE KEVOLTJTIONAKY GOVEKNMENT.

34

merce, no national courts.

[ch. in.

was invested

It

with bat " a delusive and empty sovereignty."*
It,

indeed, finished the war, and signed the

by which the independence of the

treaty,

volted colonies was acknowledged

not pay

its

penses.

It

call

even

or

debts,

current

means of

to provide the

But the power

ex-

and

could only incur expenses,

upon the States

payment.

but it could

;

its

re-

sums de-

to levy the

manded, had been jealously retained by the
several States.

The

extent to which, as late

as the spring of 1787> the different States

had

complied with or refused the requisitions of
Congress,

is

thus given by

Mr.

Justice Story,

on the authority of a member of the

York Legislature
years,

New

Carolina,

;

— " During

the

last

New
fiYe

Hampshire, North Carolina, South

and Georgia had

paid

nothing

Connecticut and Delaware about one-third
Massachusetts,

Rhode

and Maryland,

Island,

about one-half ; Virginia, three-fifths
sylvania,

nearly the whole

more than her quota." f
*

§ 245.

and

\

The
t

;

New

PennYork,

refusals or de<
§ 259, note.

;

ch.

THE CONFEDERATION.

m.]

under various pretexts

lays

were

some

plausible, as being

injustice

35

justified

founded on the alleged

and inequality of the provisions of

the Articles of Confederation, as well as the

importance of

its

omissions.

But the leading

statesmen of the day were unceasing in their
calls

upon the

different States, to satisfy first

the just demands upon them, and to sustain
the credit and honour of the Confederation,

and then

to discuss their individual claims

grievances.

peals" were
also

"

Many

made

to

solemn and affecting ap-

them by Congress, and

Mr.

by individuals.

and

Jay, writing to

Wash-

ington, on the 27th of January, 1786, says, in

a letter

full

" There

and

is

of apprehensions for the future,

doubtless

to say that

we

much

reason to think

are woefully, and in

instances wickedly misled.

many

Private rage for

property suppresses public considerations, and
personal rather than national interests have

become the great

objects of attention."*

Wash-

ington had before expressed his apprehensions
* Correspondence

of the

Jared Sparks, Boston, 1853,

American Revolution, by Professor
vol. iv. p. 136.

THE CONFEDERATION.

36
that

the

course

of

things

was

[ch.

tending to

many
have been made in

"anarchy and confusion," and that
sacrifices

vain.*

might prove

to

" The domestic debt sunk down

one-tenth of

its

sensions arose

nominal value." t

among

" and were fostered

m.

so

to about

Serious dis-

the States themselves,

to a

high degree, so as to

threaten at once the peace and safety of the

Union." t
*

§ 256,

t

§ 257.

Marshall's " Life of Washington," vol.

% § 260,

v. p. 47.

THE CONSTITUTION.

ch. iv.]

CHAPTER

37

IV.

THE CONSTITUTION.
It was, therefore, not until after thirteen years
of trial and of struggle, of tentative efforts in

the

new

career of self-government, and failures

in the difficult task of adjusting conflicting

powers and reconciling adverse

interests, that

on the 17th of September, 17§7> the Convention, to

which the whole subject had been re-

ferred, finally

Constitution.

adopted the plan of the present

This was again referred by
" convention of delegates, chosen

Congress

to a

in each

State by the people

the proposed plan

thereof;"

and

having been ratified by

eleven out of the thirteen

States,

Congress

appointed the 4th of March, 1789, " for the
first

the

meeting under the new Constitution."
6th

of

April Washington was

On

elected

THE CONSTITUTION.

38
president, "
into office,

[oh. iv.

and on the 30th he was sworn

and the Government went into

operation in

all its

departments."*

But the Constitution had not come
istence without encountering

many

and much violent opposition.

It

in six out of the thirteen States

and

majorities,

into ex-

difficulties

was carried

by only small

in three out of those six,

Mas-

Pennsylvania, and Virginia, " by

sachusetts,
little

full

more than a preponderating vote."f

One

party throughout the Union was in favour of
a constitution embodying the powers proposed,

because they were anxious for the " exact observance of public and private engagements

;"

another strong and active party was violently
hostile to
It

it,

because disposed to evade both.t

was stigmatised as unequal, unjust, and op-

pressive

;

by some of the large States from

fear of losing their importance

;

by some of

the smaller from apprehension of being over* North Carolina adopted the Constitution in November,
" Thus all the thirteen
1789, and Rhode Island in May, 1790.
original States

t

became

§ 281.

parties to the

new Government,"
t

§ 286.

§ 278.

;

THE CONSTITUTION.

oh. iv.]

39

It was,

however, finally acquiesced in

as " a system of

compromise and conciliation,"

borne.

in which the strictness of abstract theory

made

was

to yield to a just consideration for par-

ticular interests

and even prejudices, and some

"inequality of benefit" was submitted to "for
the common good." #
It has

been a matter of much discussion by

the statesmen and public writers of the various
parties in the
stitution is to

United

States,

whether the Con-

be considered as a treaty between

independent States, or a federal, or a social
compact, or both
public

mind on

?

And

the inclination of the

this question

has been, from

time to time, a subject of great importance, in
reference to the conflicting interests and opi-

nions of the North and the South, on vital
objects of public policy.

gued,

it

is

If,

as has

been

ar-

a treaty or a compact only, then

any State might withdraw from the confederation at pleasure

and dissolve the connection

and thus the Government of the Union would
*

§ 296.

THE CONSTITUTION.

40

[ch. rv.

be reduced to " a mere confederation during
pleasure." *

The

determination of this point involves

the whole question of the foundation of

civil

government.

In arguing

it,

Mr.

limitations placed

Justice Story adopts the

upon the doctrines of Locke

by Paley and Burke, and by able writers
of his

"

own

If,"

that

country.

he argues, " the doctrine of Locke,

all civil

sent,

government

is

assented to

who

are

yet

who

its

who have never

form of government

are held

and

bound by

laws.

women, persons

deemed
its

it

;

deemed incapable of such

institutions

by

neverthe-

because a State, however organised,

" embraces many persons in

are

it is

be taken with many limitations and qua-

lifications,"

ried

founded upon con-

be in a general sense true,

less to

also

its

and many
assent,

fundamental

Infants, minors,

insane,

and

mar-

and many others,

subjects of a country,

and bound

laws, although they have never assented
*

§ 328.

THE CONSTITUTION.

ch. iv.]

thereto,

41

and may by those very laws be disabled

from such an

He

act."

adds, that neither the

Constitutions of the State Governments, nor
that of the United States, can be said to be

founded upon the consent of the whole people.

Nor were

they founded upon the consent of

even the whole of that portion of the people

who were by
case,

the law qualified voters in each

but only on that of the majority of such

He

qualified voters.
not,

probably,

whose

affirms

* that " there

is

a single State in the Union,

Constitution

has

not

been adopted

against the opinions and wishes of a large minority, even of the qualified voters

notorious that some of

;

and

it

them have been adopted

by a small majority of votes;" and "in
spect to the

American Revolution

notorious that

it

is

itself,

it

reis

was brought about against the

wishes and resistance of a formidable minority
of the people."f

deemed

Who

are or are not to be

qualified voters is a matter, in all the

States of the Union, resting on

no doctrine of

abstract right, but held to be within the dis*

§§ 308-321.

f

§§ 329, 330.

"

THE CONSTITUTION.

42

[ch. iv.

cretion and competence of the actual possessors
of the franchise, acting under a sense of their
responsibility as trustees for the public good.

But the decision
through their

of

these

qualified

representatives,

having

voters,

been

duly expressed, the Constitution passed from
the nature of a compact into that of a law

it

;

became " a fundamental law, of absolute para-

mount

obligation," not to be dissolved (in the

words of Burke), except under the pressure of

supreme and inevitable
deliberate

and determination of the

choice

same power that enacted
the Constitution
clares

it to

and by the

necessity,

itself,

it.

#

The language

in its sixth article, de-

be the " supreme law of the land

and appoints

of

as its arbiter

and

;

interpreter, not

the varying wills or occasional interests of the
individual States, but those high judicial functionaries

whom,

in

its

third article,

it

expressly

designates for that purpose.

And

this last-mentioned peculiarity in the

Constitution of the United States

ought constantly

to

*

is

one which

be borne in mind in consi§5 338-372.

THE CONSTITUTION.

ch. iv.]

dering
it

it,

43

or in instituting comparisons between

and other systems of government.

Ac-

cording to our own law and practice, an Act
of Parliament once passed becomes part

Not

parcel of the law of the land.
or necessarily an

Act

United

If that

States.

and

so always

of the Congress of the

Act

should, in the

opinion of the judges of the Supreme Court,

be contrary
stitution, it

"

The

words of the Con-

to the written
is,

ipso facto, void

Constitution"

is

the

and of no

effect.

supreme power

(not the united act of the legislative and executive

power of the State

" the judicial power extends

case, as with us);

to all cases of

in each particular

law and equity under

it

;

and

the Courts of the United States are, and in
the last resort,

United States
power."*

the
is,

Supreme Court of the

vested with

The judgments

this

judicial

of the Courts of

the United States upon constitutional questions
are " of paramount and absolute obligation"

throughout

all

the States

and binding upon the
*

;

are

" conclusive

citizens at large
§ 376.

;

" and

THE CONSTITUTION.

44
if

[ch. iv.

any attempt be made to alter the written

words of the Constitution, such attempt can
only be successful by the concurrence of twothirds of both houses of Congress, or of the
legislatures of two-thirds of the States, in pro-

posing,

and of the

legislatures of three-fourths

of the States in ratifying, the change.*

Not only has

the

Supreme Court

of the

United States the power of determining whether " the laws of Congress, or the acts of

its

president, are contrary to, or warranted by,

the Constitution," but

it

has also constantly ex-

ercised this power of final interpretation over

the acts of the legislatures of the individual
States.

And

in so doing

it

has been sustained

by public opinion, which has in

mined that such power

all

cases deter-

resides in the

Supreme

Court under the terms of the Constitution.

The

question has been frequently raised

;

by

Virginia in 1798, by Kentucky in 1800, and

by other States
says

Mr. Justice

;

" but,"

may be

asserted

at different times

Story,

"

it

with entire confidence, that for forty years,
*

Article 5 of the Constitution.

THE CONSTITUTION.

ch.iv.]

45

three-fourths of all the States composing the

Union have

expressly assented

to,

or silently

approved, this construction of the Constitution,

and have

resisted every effort to restrict or

alter it."*

The

reason

why

this great

power should he

placed in the judges of the Supreme Court,

and not elsewhere,

stated

is

hy one of the

greatest legal authorities of the United States,

the late Chief-Justice Marshall, (in an able

judgment upon
Cohens

case of

this
v.

important question, in the

Virginia, given in vol.

vi.

of

Wheatstone's Reports, pages 384 to 390 ; Story,
§

392, note,) to have been, that the judges

of the

Supreme Court

tution,

appointed " during good behaviour,"

in other words, for

many

life

;

are,

by the Consti-

whereas the judges in

of the States are appointed for short

periods,

" and are dependent for

salary on the will of the legislatures

office
;

and

and the

Constitution of the United States furnishes no
security against the universal adoption of that
principle."

And when " we
*

§ 391.

observe the im-

THE CONSTITUTION.

46

[ch. iv.

portance which that Constitution attaches to

we

the independence of judges,
inclined to suppose that

it

are the less

can have intended

to leave these constitutional questions to tri-

bunals where this independence

more

especially

arisen

as

may not

exist;"

the questions which

had

between the States and the general

Government had been such

as these, namely,

whether certain just debts contracted by some
of the States should be paid by them, or certain

taxes,

imposed by Congress, collected
determined in the negative

questions which,

if

by the imagined

self-interest of the individual

legislatures, could hardly

be expected to be

otherwise determined by judges appointed by
those legislatures, and depending upon

them

for their tenure of office.

The

State legislatures have no such check

upon them

as

is

Acts

to

an independent tribunal, which

their

can determine,

afforded by the submission of

if

the question should at any

time be raised, whether they have or have not

exceeded their lawful powers.

Consequently,

"violations of the State Constitutions are

more

THE CONSTITUTION.

ch. iv.]

remain unnoticed and unregarded."

likely to

The

47

legislatures of the individual States

may,

by a vote determining upon a constitutional
amendment, " change, with few limitations, the
whole structure and power of Government, and
*
thus legalize any present excess of power."

Many

of them, as above mentioned, have ac-

tually exercised such power, against the wishes

of large minorities.!

This power of immediate action upon the
legislatures of the

several States, by those in-

vested with the franchise,

is

in stricter

corre-

spondence with the ultra-democratic ideas and

But

principles existing in Europe.

it

has no

place in the Constitution of the United States,

which

is

the ideal

commonly referred

to

by the

advocates of republican government, because
is

it

the one more widely known, and occupies

the prominent place in the public eye

The

turned towards that country.
of the State governments,

and

arrangements in regard

to

principles

their particular

the

amount and

distribution of popular power, are less
*

§ 395.

when

t Page 4L

known

48

THE CONSTITUTION.

because less conspicuous
not such
likely to

as, if

and

their practice

more widely known, would be

recommend them

of administration,
tories of

;

[oh. iv.

as models of purity

or as considerate

deposi-

supreme power, or always as

assertors of law and

justice.

strict

THE PREAMBLE.

ch. v.]

CHAPTER

49

V.

THE PREAMBLE.

The

preamble of the Constitution declares,

in substance, the importance, the advantages,

and

in regard to

many

particulars, the abso-

lute necessity, of a national

These

positions

are

so

Government.
indisputable

that

there will be no need to follow the commentary

upon each separate statement of the preamble
itself.

They command

at

once our assent, as

they declare the aim of the national Govern-

ment

of the United

States to be

spect different from what

in no re-

we should

assert of

our own.

There are two

points, however,

Justice Story adverts
cially

to,

as having

which Mr.
been espe-

designed to be established by the framers

D

THE PKEAMBLE.

50

of the Constitution, which

it

[ch. v.

will

be instructive

to notice.

The preamble

recites that the Constitution

was framed in order, among other things, to
" establish justice ;" and the learned commen-

remarks upon that clause* show, in

tator's

branch of

lation to one great

the payment of debts,
of

how

re-

namely,

justice,

great was the need

some over-ruling authority

to

compel the

in-

dividual States to the observance of good faith
in those matters, both towards each other and to

He

individuals.

due

says that, " besides the debts

to foreigners, the public debt of the

States

was

officers

left utterly

and

unprovided for

soldiers of the Revolution,

;

United

and the

who had

achieved our independence, were, as we have

had occasion

to notice, suffered to languish in

want, and their just

demands evaded or passed

by with indifference."

made by
more or

"

Laws were

constantly

the State legislatures, violating, with
less

degrees of aggravation, the sacred-

ness of private contracts
receipt of a depreciated
*

;

laws compelling the

and depreciating paper

§§ 485-6.

THE PREAMBLE.

ch.v.]

51

currency* in payment of debts, were generally,
if

not universally, prevalent

* # laws autho-

;

rising the delivery of any sort of property,

however unproductive or undesirable, in pay-

ment

of debts,

upon an arbitrary or friendly

appraisement," and several other laws of the

" In the rear of these came the

same nature.

of general

systems

which were of a
others "

had

laws,

insolvent

permanent

some of
and

nature,"

so few guards against frauds of

every kind by the debtor, that in practice they

amounted

to

an absolute discharge of any

debt, without anything

dividend

more than a nominal

and sometimes

;

even

mockery was dispensed with."*

that

vain

"The

local

tribunals were obliged to obey the legislative
will

;

and

in the few instances in

resisted, the

sacrificed to the

descriptions,

which

it

was

independence of the judges was

temper of the times."f These

and much more

to the

same

effect,

apply to the period of the Revolutionary Govern-

ment, and the confederation, between 1774 and
1789.

The power
*

§ 487.

to sanction such departures

t

§ 487.

D 2

THE PREAMBLE.

52

[ch. v.

from honesty and justice has, by the Constitution

of the United States, been taken

away

from the legislatures of the individual

States,

The

events,

in

some of the above

particulars.

however, of only a few years ago, in regard

to

the " repudiation " of their debts by many of
the

show that there

States,

against

recurrence

the

of

is

no security

such

aberrations

from principle, among communities where the
numerical majority has the controlling power,

and

is

under the pressure of some tem-

able,

porary suffering, or some excited feeling, to
overbear

among

all

that

is

honourable and enlightened

their fellow-citizens.

A notorious

in-

stance of the inability of the legislature and of

the executive of a State to cause the law to be

enforced when resisted by popular clamour,
has, for the last twenty-seven years, continued
to

be exhibited by the great and populous

State of

the

New

York, almost within sight of

Houses of Legislature,

in

the forcible occupation of the
of a portion of the

the tenantry,

who

the
large

Van Ransalaer

case

of

estates

family by

refuse either to pay rent

THE PREAMBLE.

ch.v.]

or to give up their occupation.

numerous

ciently

to

53

They

have been able

are

suffi-

to elect

the local officers, without whose aid the law

Those newspapers of the

cannot be enforced.

State which possess any
interest

and

sense of the public

dignity, frequently call for either

the vindication of the law by an adequate em-

ployment of the public

force, or a satisfactory

compromise between the parties

and

without effect;

this

;

but hitherto

great scandal

still

exhibits, in the twenty-seventh year of its exist-

" defects of justice" which

ence, one of those

the Constitution of the United States has no

power

to interfere with,

but which could never

occur under institutions which give due place

and weight

to the

portion of the community

incapable of submitting to such a stain. #

Another object of the United
stitution, was,

*

A

according to

Conthe preamble, " to
States

decision has recently been given in the

of the State of

New

Ransalaer family; but
years, is

much

Supreme Court

York, adverse to the claims of the

disputed

its justice, after so
;

Van

long a period of

and the present determination of the

point does not excuse the flagrant and successful resistance to

the law as

it

stood.

THE PREAMBLE.

54

[ch. v.

insure domestic tranquillity," or in the words

"Federalist" upon that

of the

portion

of

the Constitution, "to guard one part of society against the injustice of the other part,"
if their

peace,

safety,

or interests should be

threatened by an adverse party or faction.

The danger

of the whole

power of the State

hands of a faction

falling into the

is

one to

which pure republican governments are espe" If a majority be united by

cially exposed.

a

common

will

the rights of a minority

interest,

be insecure."*

It

was a main object

with the framers of the Constitution to devise

means
or

for protecting the rights of minorities

rather,

what

is

more

for

effectual,

abling minorities to protect themselves.

en-

These

means, which are comparatively weak in the

more purely republican governments of the
individual States, are, in the "

compound

re-

public" of the United States, to use the expression of one

of the able

" Federalist," sought
in

the hands

of
*

so

for,

writers of the

by placing power

many

Federalist, No. 10.

parts,

interests,

THE PREAMBLE.

ch. v.]

and

classes

individuals,

This

majority."

principle

interest

however

pathies, with

justly gives

it,

and which

and however appa-

in its instincts

and sym-

the great majority of influen-

opinions in the State.

;

same

hearing to every

full

small,

rently at variance,

der

precisely the

is

Constitution,

British

has always insured a

dom

be in

will

which has always been so conspicu-

ous in the

tial

minority,

of the

danger from interested combinations of

little

the

"that the rights of

of citizens,

or

55

It is this

air of true

it its

and

liberal free-

which makes every man who
feel that

On

lives

un-

he possesses in himself, and

in those united with

oppression.

which

him, a guarantee against

this point there is

no

differ-

ence of principle between our Constitution and

The

that of the

United

only in the

modes of attaining the same end.

We

States.

difference

is

look to the independent powers of our

ancient or

modern

corporations, to the distinct

and peculiar powers and privileges of our
church and

universities, to

our hereditary and

independent House of Lords, to the

fair re-

THE PEE AMBLE.

56
presentation of

House

all classes

Commons by

of

and

[oh. v.

interests in our

such a distribution of

the franchise as will enable representatives of
all classes to

obtain a place there.

The

Consti-

tution of the

United States looks

to the

"great

and

variety of interests, parties,
it

sects

which

embraces," as the security against a coali-

tion of a majority to overbear the wills,

a minority, by sudden

affect the interests of

and hasty

this

moment

its

;

but

Constitutions

jorities,

institutions

Both seek
it

to

this

mature

break the force of ma-

were, to stay their hand,

reflection,

have been able
difficult

even

at questions

are

important point the

until the majorities themselves

for

be entered

Great Britain and of the

of

and, as

at

and principle the

intention

United States are on
same.

It will

No human

in

of the

we need not

purpose,

stop to argue.

upon elsewhere.
perfect

Which

acts of legislation.

two best answers

and

and

have had time

until

minorities

to exercise the effort,

to the calmest

always

minds, of looking

that threaten their interests or

thwart their opinions, from the points of view

THE PEEAMBLE.

ch. v.]

57

that lead to the conclusions which are prevail-

ing against them.
rities

It is thus only that

can have time to prepare

themselves

to,

for,

and adjust

the coming change.

However temperate and forbearing
ciple

and

mino-

intention,

in prin-

and therefore similar

to

our own, the Constitution of the United States

may be

in those particulars, the constitutions

of the individual States partake very

little

of

that spirit, and the tendency of the whole of

them has been, from the period
lution to the present day, to

of the Revo-

weaken or do

away with any checks or impediments that
existed in their original forms of government,

upon the immediate action of the numerical
majority of voters, and thus to assimilate themselves

more nearly

to

pure democracies.

The

particulars of these changes will be found in a

future page.

D 3

THE LEGISLATIVE, EXECUTIVE,

58

CHAPTER

[ch. vi.

VI.

NECESSITY OF SEPARATING THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL POWERS.

The

necessity of the separation of the three

great powers of a State
executive,

and the

mentary, that

argument
" the

first

tesquieu

—the

legislative,

the

judicial, is a truth so ele-

requires in this country no

it

to enforce

maxim

"

it.

It is," says Paley,

of a free State ;" and

had before observed,

Mon-

that there can

be no liberty where those three powers are not
kept distinct.*
Accordingly,
that "it

is

Mr. Justice Story remarks,

no small commendation of the Con-

stitution of the

United

adopting a new theory,
truth as the basis of
* Esprit des

it

its

Lois, Liv. xi.

States, that instead of

placed this practical

organisation." t

c. 6.

t

§ 524.

AND JUDICIAL POWEKS.

ch. vi.]

The
to

judicious

powers

blending of these

a certain limited

Blackstone,

59

does

extent,

not

noticed

as

but

against,

militate

by

strengthens this principle, by promoting unity
of action between the whole, without infring-

Thus

ing upon the independence of either.
sovereign of this country "

liament ;" the

Crown

cannot remove them

of

the

;

Commons

a part of the Par-

appoints the judges, but

sesses both legislative

House

is

the

House

of

Lords pos-

and judicial powers

exercises the

House

the

power of im-

peachment; and the judges occasionally "
in the deliberations of the

;

assist

of Lords by

giving their opinion upon matters of law referred to them."

This same blending of these

three powers exists also in a similarly limited

and useful manner
United States

in the Constitution of> the

and

;

been defended by

all

it

is

a point which

fyas

the ability of the authors

of the " Federalist," and the framers of the

Constitution.

In the constitutions, however,

of several of the States, a less regard
to

this

many

vital

of

principle

them,

it

of

liberty

;

is

paid

and in

has been entirely aban-

THE LEGISLATIVE, EXECUTIVE,

60

doned

;

[ch. vi.

both the appointment and the payment

of the judges having in

been assumed

some of the States

by the legislature,

while in

others the judges have to submit to the ordeal
of a popular election once every few years.

Impressed with the conviction that the in-

dependence of the judiciary

is

the great gua-

rantee for the maintenance of the Constitution
of the United States,

of the public

mind

and aware of the tendencies
in

many

of the individual

States to overrule that principle,

Mr. Justice

Story, following the authors of the "Federalist,"

labours to remind his countrvmen of the necessity of

maintaining " some practical means"

for the security of the judiciary " against the

meditated or occasional invasions" of either of
the other two powers.

He

shows

three powers, the judiciary "

is

that, of the

incomparably

the weakest,"* and that the danger most im-

pending over their country was that of the
usurpation by the legislative bodies of

powers of the State.
republic,

"In

all

the

a representative

where the executive magistracy
*

§ 531.

is

AND JUDICIAL POWEKS.

ch.vl]

carefully limited, both

ration of

power

is

its

61

in the extent

and du-

power," and where the legislative

exercised by an assembly responsive

and capable

to the passions of the multitude,

of giving effect to those passions,

"

see that the tendency to usurpation

to

not constant, at least probable

;

easy

it is

is, if

and that

it is

against the enterprising ambition of this (the
legislative) department,

well indulge all their jealousy,
their precautions."*

He

may

that the people

and exhaust

all

adds, that under their

forms of government, the legislative body
"
is

Has

easily

the pride as well as the strength of numbers.

It

moved, and steadily moved, by the strong im-

pulses of popular feeling and popular odium.

It obeys,

without reluctance, the wishes and the will of the majority
for the

The path

time being.

by such obedience, and

it

to public favour lies

open

finds not only support but im-

punity, in whatever measures the majority advises, even

though they transcend the constitutional
no motive, therefore,

to

limits.

It has

be jealous, or scrupulous in

its

own use of power; and it finds its ambition stimulated,
and its arm strengthened, by the countenance and the courage of numbers.

men who
lics;

These views are not alone those of

look with apprehension upon the fate of repub-

but they are also freely admitted by some of the

*

§ 533.

THE LEGISLATIVE, EXECUTIVE,

62

[ch. vi.

strongest advocates for popular rights and the permanency
of republican institutions.

abundant examples

He
lie

Our domestic

history furnishes

to verify these suggestions."*

then asks, what

is

the remedy

?

Does

it

in frequent appeals to the people, in the

hope of their speedily correcting their own
errors

He

?

quent,

it

will

respect for,

answers, " But

have a tendency

and confidence

our institutions, which
salutary influence."!

is

in,

these be freto lessen that

the stability of

so essential to their

Neither

that they would be successful
feelings

if

is

it

probable

for " temporary

;

and excitements, popular prejudices,

an ardent love of theory, an enthusiastic temperament, inexperience, ignorance, as well as
preconceived opinions, operate wonderfully to
blind the judgment and seduce the understand-

"

A

lucky

hit,

or a strong figure, has not unfrequently

overturned the best- reasoned plan.

Thus, Dr. Franklin's

remark, that a legislature with two branches, was a waggon

drawn by a horse before and a horse behind, in opposite
directions, is understood to

*

§ 535.

have been decisive in inducing
t

§ 537.

AND JUDICIAL POWERS.

ch. vl]

Pennsylvania, in her original constitution,
legislative

63
to

invest all the

In her present

power in a single body.

consti-

tution that error has been fortunately corrected."*

But such appeals

the people, whether

to

frequent or at distant intervals, would be ineffectual,

inasmuch

as,

" the tendency of

re-

publican governments being to the aggrandise-

ment

of the legislature at the expense of the

other departments," and the
legislature being

dwelling

among

them by various

numerous

members
and

of the

influential,

the people, and connected with
ties of

confidence and interest,

the latter would plead their cause before the

people at a great advantage, as compared with
the judiciary or the executive, whose rights

they

may have

fail to

and could scarcely

invaded,

He

be sustained by the public voice.

concludes that the only effectual barrier against
the inroads of the legislature upon the other

departments

of

the

Government,

is

to

be

looked for " in some contrivances in the interior structure

the

of

Government

itself,"

whereby "the constitutional independence of
*

§ 537.

THE LEGISLATIVE, EXECUTIVE,

64
each

may be

"Each

fully

should have

provided

for."

[ch.

vl

* # #

*

independence secured

its

beyond the power of being taken away by

either,

or by both the others," by such a "partial participation of each in the

powers of the other,"

and such a system " of checks and balances,"
as

we

England happily possess

in

Constitution,

in our

own

and which that of the United

States has sought to follow as far as circum-

stances permitted.

The independence

of

the judicial depart-

ment, " which must always be the weakest,"

can only be preserved, Mr. Justice Story rightly
insists,

by the

legislature

from

abstaining

exercising any power over the salaries of the
judges,

when they have been once appointed

by the executive.
departed from in

Not only,

This forbearance has been

many

of the individual States.

as before-mentioned,

of the judges been, in

many

have the

salaries

instances,

made

subject to the annual vote of the legislature,

but in others the judges themselves are appointed,
electors,

not by

and

the

executive,

but by

for short periods of years.

the

AND

ch. vi.]

JUDICIAL

PC- WEES.

65

In anticipation of the possibility of some
future attack upon the independence of the

judges of the Supreme Court of the United
States,

who

are appointed by the Constitution

as its defenders in the last resort,

Mr.

Justice

Story urges very forcibly the necessity of those

" additional guards," which can alone " protect
this

department from the absolute dominion

of the others."

Yet, he adds, "rarely have

these guards been applied
to introduce

pertinacity

;

them has been

resisted with a

which demonstrates how slow popu-

lar leaders are to introduce

own power

and every attempt

;

checks upon their

and how slow the people are

believe that the judiciary

is

of their liberties."*
*

§ 540.

to

the real bulwark

THE SENATE.^

Q6

CHAPTER

[ch. vii.

VII.

THE SENATE.

The

policy of dividing the legislature into

two distinct branches,

is

one upon which there

can be no difference of opinion

among

well-

informed persons, either in this country or in
the United States, in the present day.

not

so,

was

It

however, in the latter country, at the

time of the Revolution

;

and the question of

the propriety of establishing a second legislative

chamber, there termed the Senate, was

not determined without a careful review of

all

the arguments in support of such a measure.

A very
cessary, as

brief recapitulation of

is

ne-

an introduction to what follows on

the subject of the Senate

The

them

value of an

itself.

Upper House

or Senate

was insisted on " as a security against hasty,

THE SENATE.

ch. vil]

rash,

and

errors

and mistakes

dangerous
to

67

legislation

;

allowing

be corrected, before

The

they have produced public mischief."*

second chamber "being organised upon
ferent

principles,

and actuated by

dif-

different

motives," will operate as " a preventive against

attempts to carry into effect private, personal,
or party objects, not connected with the com-

mon

good."

It secures

" an independent reto act

upon the

whole community, and which may

affect in-

view" of measures that are

terests

" of vast

and complexity,"

difficulty

and therefore " require nice adjustments and
comprehensive enactments."

It is

of great

importance that such proposed Acts of
lation should be reviewed

legis-

by different minds,

"acting under different and sometimes opposite

opinions and feelings."

" Whatever, therefore, naturally and necessarily awakens
doubt, solicits caution, attracts inquiry, or stimulates vigi-

lance and industry,

is

of value to aid us against precipi-

tancy in framing or altering laws, as well as against yield-

ing to the suggestions of indolence, the selfish projects of
ambition, or the cunning devices of corrupt and hollow

demagogues."!

*

Story, § 555.

t

§ 557.

THE SENATE.

68

[ch. vii.

In the next place, there can scarcely be any
other adequate security against encroachments

upon the constitutional rights and
the people.
all

Algernon Sidney has said " that

governments have a tendency

power,

liberties of

but those

are

that

place this power so as

it

to arbitrary

constituted

well

may be

beneficial to

the people, and set such rules as are hardly to be

transgressed/'*
this

The

legislative

power derives

constant tendency to overleap

its

proper

boundaries, from passion, from ambition, from
inadvertence, from the prevalence of faction,
or from the overwhelming influence of private

Under such

interests.

circumstances, the only

effectual barrier against oppression, accidental

or intentional,

balance

is to

interest

separate

against

its

operations, to

ambition

interest,

against ambition, the opinions and sympathies
of one body against the opinions
thies of the other.

Mr.

"

And

it is

Justice Story, " that the

and sympa-

obvious," says

more various the

elements which enter into the actual composition of each body, the greater the security
will be."f

* Discourse on Government,

c. 3. §

45.

t

§ 558.

THE SENATE.

ch. vil]

69

It will be observed that the policy of

making

an Upper House, or Senate, a part of the
Constitution of the United States,

is justified

by precisely the same arguments that are used
in this country in favour of the existence of

the

House

of Lords as an integral part of our

Constitution.

And

the learned commentator's

argument, " that the more various the

ele-

ments that enter into the composition of each
body, the greater the security will be,"

is

much

our two Houses of Parlia-

more applicable

to

ment than

Senate and House of Repre-

to the

United

sentatives of the

The

States.

propriety of having an

Upper House

having been determined upon, the following

more

detailed

fluenced

reasons, stated

its

in-

actual structure, place

in a stronger light the efforts
to assimilate that

in its character
as

having

the framers of the Constitution in

giving to the Senate

extent

as

body

and

to the

made by them

House

of Lords,

functions, to as great an

was compatible with

institutions

from which the hereditary principle was excluded.

THE SENATE.

70

In the

first

place, as a basis for the argu-

ment on which
it

is to

[ch. vii.

present

its

structure rests,

be assumed as granted that a second

branch or Upper House of legislature

will

be

" a salutary check " upon the Lower.

And

as

this

check

the

dissimilarity

bodies,

it

will

be effectual
the

in

must be

"

in proportion to

genius

two

of the

politic to distinguish

them

by every circumstance " consistent with the
on

principles

which

the

Government

is

founded.*
Secondly, the necessity of a Senate being
indicated " by the propensity of all single and

numerous assemblies

impulse of

to yield to the

sudden and violent passions, and

to

be seduced

by factious leaders into intemperate and pernicious resolutions," examples of which " might
be cited without number from proceedings in
the United States, as well as from the history

of other nations,"

body

it

was essential " that a

to correct that infirmity

should be

less

numerous, and should possess a due degree of
firmness,

and a proper tenure of
*

§ 562.

t

office."f

§ 563.

THE SENATE.

ch. yn.]

71

Thirdly, " another defect to be supplied by

a Senate, was the want of a due acquaintance"

with the objects and principles of legislation,

which was often manifested by the Lower

Houses of the American
to the adoption of

legislatures

;

leading

unwise and ill-considered

measures which frequently required to be repealed, explained, or amended.*

Fourthly, " such a body would prevent too

great a mutability in the public councils, aris-

new members."

ing from a rapid succession of

" Such instability has a tendency to diminish
respect

and confidence," "

damp

to

the ardour

of enterprise, to diminish the security of pro-

and

perty,

to

impair the reverence and attach-

ment which are indispensable

to the

permanence

of every political institution"!
Fifthly,

a Senate would be greatly instru-

" in keeping alive

mental
national

character,"

by

a

a

due sense of

scrupulous

and

uniform adherence to just principles, " which
it

is

that

difficult to

impress upon a single body

numerous and changeable."!

is

Sixthly, a Senate will
*

§ 564.

t

more

§ 565.

effectually
%

§ 566.

main-

THE SENATE.

72
tain

[ch.

vn.

" the due responsibility in the Govern-

ment," which

is

apt to be endangered by the

frequency of the elections of the Lower House.

The members

of the Senate being less liable

to change, will feel a greater degree of personal
responsibility,

and contribute

keep up the

to

connected chain of legislation which
tial to

essen-

is

the public welfare.*

" a Senate duly constituted would

Lastly,

not only operate as a salutary check upon the

House

Representatives,

of

but occasionally

upon the people themselves, against
temporary delusions and errors."
excitement,
lated by

when

the public

some irregular

their

own

In times of

may be "

passion, or

stimu-

some

illicit

advantage, or misled by the artful misrepresentations of interested
tary will be

the

men,"

.

interference

.

.

" how salu-

of a

body of

respectable citizens, chosen without reference
to the exciting cause, to

check the misguided

career of public opinion, and to suspend the
blow, until reason, justice, and truth can regain
their authority over the public

The

mind."t

Senate of the United States
*

§ 567.

t

is

§ 568.

composed

THE SENATE.

ch. vil]

of two senators from each

73
State,

chosen by

the legislature thereof for six years (sect. 3

and by clause

of the Constitution, clause 1);
2, one-third

of the Senate

renewed every

is

second year.

The

fact of the senators being the represen-

tatives of the several States in their individual

and independent capacities,
" in the great difference

it

of importance,

is

creates in the ele-

ments of the two branches of the legislature,
not unlike the different organisations of the

Commons and the House of Lords
The members of the
Great Britain."*

House
in

House

of

of Representatives of the United States

are chosen in reference to population

;

those

of the Senate " represent the voice, not of a
district,

but of a State," t and a more enlarged

view of the interests, not only of their
State,

but of the whole Union of States,

expected of them.

more

own

likely to

They

therefore,

will,

is

be

impose a salutary impediment

to the multiplication of

bad laws.

They may,

indeed, occasionally stop the progress of good
*

§ 704.

t

§ 699.

E

THE SENATE.

74

" But," says

ones.

[ch.

Mr. Justice

" a

Story,

good law had better occasionally

vn.

rather

fail,

than bad laws be multiplied with a heedless

Even

and mischievous frequency.
be

must, in general, be slow

safe,

can be

reforms, to

and there

;

danger that public opinion

little

not sufficiently stimulate

all

public bodies to

changes which are at once desirable and

quil

and

... "

satisfied

And

Senate,

restless for

it

in

politic.

human mind

All experience proves that the

more eager and

is

changes than tran-

with existing institutions."*

has been demonstrated that the

its

actual

organisation,

is

adapted to the exigencies of the nation
it is

will

;

well
that

a most important and valuable part of the

svstem, and the real balance-wheel which adjusts

and regulates

The argument
which the Senate
" that
of a

it is

its

for
is

movements." t
the

composed

indispensable that

number

number

actual
is

it

sufficiently large to

stated to be,

should consist
ensure a

cient variety of talents, experience,
tical skill, for

*

the discharge of

§ 701.

t

of

suffi-

and prac-

all their duties.
§ 702.

THE SENATE.

ch. vil]

The

legislative

and prudent
of

power alone,

75

for its enlightened

no small share

exercise, requires

and

knowledge,

patriotism,

In

ability.

proportion to the extent and variety of the
labours of legislation, there should be

who should

may be

members

share them, in order that there

a punctual and perfect performance of

them."*

And

number and

comparison between their

a

that

of

the

House

of Lords,

number

strengthens the conclusion that the

members composing the Senate

is

of

neither too

great nor too few for the adequate discharge of
their duties.

The

reasons for the duration of the term of

the office of senator for six years were, " that

a deep-felt responsibility

is

incompatible with

Men

great frequency of elections.
little

as

power which

interest in

soon as

it

is

slips

can

feel

away almost

grasped, and in measures

which they can scarcely do more than begin,
without hoping to perfect." t
in

The arguments

favour of the duration of the legislative

office

generally "
*

§ 706.

may be urged with
t

increased

§ 711.

E 2

THE SENATE.

76
force

regard to

in

[ch. vn.

the Senate."

It is

ob-

served that some of the wisest statesmen of

America have not scrupled
some

to assert that in

of their legislative assemblies there has

been exhibited a marked deficiency

in

the

knowledge of the means by which the real

and welfare of a people are promoted.

interests

" It

any assembly of

utterly impossible for

is

men, called
of private

for the

life,

most part from the pursuits

continued in employment for a

short time, and led by no permanent motive to

devote the intervals of public occupation to
the

study of the nature

Government,
of

many

to escape

and operations of

from the commission

errors in the discharge of their legis-

lative functions.

In proportion

and variety of those functions,
interests

to the extent

to the national

which they involve, and the national

duties which they imply, ought to rise the intellectual qualifications

of the

members."

therefore, "

value, by

A

and

solid attainments

well-constituted Senate,

would be incalculably increased in

making

its

term of

office

such that,

with moderate industry, talents, and devotion

;

THE SENATE.

ch. vil]

the

to

public

service,

77

members

its

could

scarcely fail of having the reasonable informa-

which would guard them against gross

tion

and enable them

errors,

to

resist

visionary

speculations and popular excitements,"* while
it

gave them the motives and the power to act

upon

their

own

convictions.

This argument
of senator

is

for the duration of the office

of peculiar force in the United

States, where, according to

"

known

a

it is

in
if

in

less

new

election

(which

most of the States takes place annually,

others

every two years) changes nearly,

not quite,

tives;

Justice Story,

fact in the historv of the indi-

vidual States, that every

now

Mr.

and

one-half

of

in the national

their

representa-

Government, changes

frequent or less numerous can scarcely be

expected.

From

must unavoidably

and with

this

this

change of men there

arise a

change of opinions

change of opinions a correspon-

dent change of measures." t

must

How much

interfere with both public

may be

interests
*

and private

readily conceived, and

§§ 713, 714.

t

this

§ 715,

is,

in

THE SENATE.

78
point of
in the

"

fact,

very often most inconveniently

common

transactions of business.

instability of the public

the

felt

This

councils gives an

unreasonable advantage " to
in

[ch. vii.

all

those persons

community who are always ready

to

prey upon the wants of others, " and generates
the worst passions of selfishness, and the worst
spirit of

gaming."

It also

" impairs the

spect and confidence of foreign nations,"

re-

and

" exposes the whole policy of a State to be
counteracted by the wiser and more
policy of

A

its

stable

rivals."*

fear arose

when

the proposition to appoint

the Senate for six years was about to be intro-

duced into the Constitution, that by
tion of office " they

this dura-

would gradually acquire a

dangerous pre-eminence, and eventually trans-

form themselves into an aristocracy."
such

fears,

To quiet

though held by the best authorities

of the time to be unfounded, the provision was

added, that one- third of the seats should be

vacated every two years,

thus

creating

" a

biennial appeal to the States," as regards one*

§ 716.


THE SENATE.

ch. vil]

79

third of the

number composing

" which must

for ever prohibit

the Senate,

any permanent

combination for sinister purposes," without,
thought, " impairing

is

discharge of

The

its

it

efficiency for the

high functions." *

its

legal qualifications of a senator are

that he

must be

thirty years of age,

have been

nine years a citizen of the United States, and
be,

when

for

which he

there

is

an inhabitant of the State

elected,

chosen.-}-

is

no need

to

remark

On

these

points

further, than that

the legal age for a representative being twentyfive I (four years only

qualification

mons), a
States

for a seat in the

member

may

beyond the age of legal

still,

House

of

Com-

of the Senate of the United

before the age of thirty, have

acquired five years' experience in his legislative
duties, if
first

it

had been

his fortune to

elected a representative.

reasons of prudence, in

United

States,

youth ends

a

have been

Perhaps,

country

also,

like the

where the ordinary education of

much

earlier than with

* §§ 718. 724.
f Section 3 of the
% Section 2, clause 2.

us,

may

Constitution, clause

3.

THE SENATE.

80
afford valid

ground

[ch. vn.

for deferring

the age of

admission into the legislature.

There are some other points regarding the
Senate,

which Mr. Justice Story discusses

but as

they

have no particular interest in

reference to similar points in our
tions, I pass

them

by.

It will

own

institu-

also be

more

convenient to defer any general remarks upon
the Senate, until we are able to embrace in

the same view both the Senate and the
of Representatives.

House

:

CH.vm.]

THE HOUSE OF REPRESENTATIVES.

CHAPTER

31

VIII.

THE HOUSE OF REPRESENTATIVES.

The House
is

composed

of the Union
members " chosen every second

of Representatives
of

year by the people of the several States." *

The
as

principle of popular representation was,

we have

seen,

no new thing

American

to the

They

people at the time of the Revolution.

had been nursed
colonial charters,

in

liberty

under the old

and had been accustomed

to

the process of voting the taxes and controlling
the supplies, after the

House
only,

of

manner

of the British

The mode

Commons.

was a subject of

of election

controversy

period of framing the Constitution.

arrangements were

proposed and

* Article

at

the

Various
debated

1, sect. 2.

E 3

THE HOUSE OF REPRESENTATIVES,

82
election

election

by the State legislatures

by delegates, &c.

mode, according
real

to

responsibility

[ch. vra.

indirect

;

but the only true

;

Burke, of securing the

of

representatives

the

the people, was adopted

to

that of direct elec-

tion by the people themselves.

The

right of the franchise, conferred by the

ought unquestionably

State,

to

raise,

mind of every one invested with
the responsibility
cise

it

places

him

it,

in

the

a sense of

under, to exer-

such right, according to the best of his

judgment, for the purposes for which

it

was

conferred upon him, namely, the public good.

Thus

considered, the possession of the fran-

chise ought to elevate the feeling of personal
dignity, strengthen the

suggestions of duty,

and furnish strong motives
tion

for

and study, without which

to follow with intelligence

mental cultivait is

impossible

the discussions on

the great public measures of the day.

It is

without doubt a gratifying and a noble incident in the condition of a great State, that by
the

willing

classes,

consent

of the

more instructed

and of those possessing, by means of


ch. vra.]

THE HOUSE OF REPRESENTATIVES.

83

property, the greatest stake in the preservation
of peace and good order

and wise government,

the franchise should be, by their act, through
their representatives,

distributed, without fear

or apprehension, very widely
of the community.
this

among

the mass

But the extent

can be carried, with safety to

plicated interests of the State,

to

all

which

the com-

and has ever

is

been, by the best and greatest political authorities in

ancient and

modern

times,

argued as

a question of expediency, to be determined by
the discretion of the legal powers of the State
for the time being.

And

as

a matter of abstract right,

it

such, and not as
is

and has been

determined by the legislation of the United
States, as well as

throughout

by that of the several States

the Union.

Mr.

Justice Story

adopts and enforces this principle in the fol-

lowing words

:

" This fundamental principle of an immediate choice by
the people, however important, would alone be insufficient
for the public security, if the right of choice

auxiliary guards

and accompaniments.

It

had not many

was indispensa-

ble to provide for the qualifications of the electors.
is

obvious that, even

when

the principle

is

It

established,

THE HOUSE OF REPKESENTATIVES.

84

[ch.

vm.

that the popular branch of the legislature shall emanate
directly from the people, there still remains a very serious

question, by

whom and

in what

manner the

choice shall be

made."*

This question, he adds,
plexing in theory

varied, according to

tory, in

to prac-

been much

States, has

the different " manners,

habits, institutions, characters,

of the people

sufficiently per-

and when reduced

;

different free

tice in

is

and pursuits

" the local position of the terri-

;

regard to other nations

the actual

;

organisation and classes of society

;

ences of peculiar religious,

or political

institutions;"
.

.

.

.

.

civil,

the influ-

"the national temperament;"

" the degrees of knowledge or ignorance

pervading the mass of society."!
"

The most strenuous

advocate

for

universal suffrage

has never yet contended, that the right should be absouniversal.

lutely

No

one has

ever

been

sufficiently

visionary to hold that all persons, of every age, degree, or
character, should
all

public officers.

or

insane

be entitled to vote in
Idiots, infants,

utterly imbecile,

all

elections of

minors, and persons

have been, without scruple,

denied the right, as not having the sound judgment and
discretion

*

§

fit

for its exercise.

577.

In many countries, persons
t

§ 578.

THE HOUSE OF REPRESENTATIVES.

oh. vni.]

guilty of crimes have

been denied the

also

85

right, as a

In most

personal punishment, or as a security to society.

countries, females, whether married or single, have been

purposely excluded from voting, as interfering with sound
policy,

and the harmony of

in which

they have

social life.

In the few cases

been permitted

to vote, experience

has not justified the conclusion, that

it

has been attended

with any correspondent advantages, either to the public or

And

to themselves.

yet

would be extremely

it

upon any mere theoretical
principle

satisfactory

society has thus

reasoning, to

difficult,

establish

upon which the one-half

of

any

every

been systematically excluded by the other

half from all right of participating in government, which

would

not, at the

same time, apply

to

and justify many

other exclusions."*
If,

"

all

all

according to the ultra-democratic theory,

men

are born free and equal

if,

because

have common rights and interests to pro-

tect,

have therefore a natural, equal, and

all

inalienable right to vote, and to

decide, by

themselves or by their representatives, upon
the laws and regulations that are to control and
sustain such rights,"

ment
<c

what

that does not as

as free,

beings,

.

intelligent,
.

.

having a
*

is

there in that argu-

much

apply to females

moral, and responsible
vital
§ 579.

stake

in all the

THE HOUSE OF REPRESENTATIVES.

86

[cH.vm.

laws and regulations of society," or to minors,

who, by the law of England, attain their majority at the age of twenty-one

;

by the law of

France, at one time, at the age of thirty
the law of Naples, at eighteen

law of Holland at twenty-five?*

man

say that one

is

;

;

by

and by the

"Who

shall

not as well qualified as a

voter at eighteen, as another at twenty-five,
or a third at forty, and far better than most

men
It

at eighty
is

?

"

almost

assumption

f
superfluous to advert to the

which

on

theory rests, " that

equal ;"

its

all

the

men

ultra-democratic
are born free and

unsoundness has been long since

fully

exposed by the discussions

gave

rise at the

tion.

Men

to

which

it

time of the French Revolu-

are born into society, and find,

from the moment that they become responsible
agents, that their natural liberty, even in the
freest States,

has been placed under certain

limitations,

long before

they were born, by

that society,

and

good of

for the

* Blackstone's Commentaries,
f Story,

§ 579.

its

members

§§ 463, 464.

THE HOUSE OF REPRESENTATIVES.

ch. vin.]

And

as a whole.

87

natural liberty has

if their

been in one case justly restrained by laws expressing the mature and enlightened opinion
of the governing body of society

by

as

man from

those laws which prevent a

all

using

his natural liberty to the injury of his neigh-

bour

—why

equal

should

not be restrained with

another

in

justice

it

should participate in
until

mature

the

governing power,

the

and

enlightened

of the governing body of society
that

with

he

capable

is

intelligence,

society?

using

of

and

true

either in natural gifts

eye

men

that all

in fact,

of society,

and

power

benefit

the

to
it

ultra-

perfectly

is

are

un-

born equal,

abilities, or in

that

of

has been

even the most savage.

equality before the law
of natural justice

it

satisfied

that

democratic notions of equality,
that

opinion

is

the

for

Again, with respect

abundantly shown

no man

that

as

first

—every individual

the

To

sentiment
is

entitled,

of whatever age or sex, or of whatever condition

— mental,

feeling

and

physical, or

social.

This just

principle of equality before the

THE HOUSE OP REPRESENTATIVES,

88
law,

by a confusion of ideas, been ex-

has,

tended

[ch. viii.

convey the meaning of a natural and

to

which ever existed

social equality, neither of

among men.
that there

is

In the same manner, the idea
such a thing as an abstract right

to vote, is traceable to the habit of using the

word "right"

The

a too general sense.

in

imperfection of language leads to the use of
the same word to express a natural right as
to

express

a

civil

mere creation of the law
a civil ordinance, which
just

or

equitable,

The

right.

latter

is

a

for the time being

may

expedient

or

may

otherwise

or

which, as regards the franchise,

not be

may

involve

the questions of whether the age at which a

minor

shall attain his majority shall be twenty-

one, eighteen, or twenty-five, and whether
for the general

good that

this or that qualifi-

cation should be required of a

man

power of voting

him

is

it is

conceded

to

before the
;

and when

these questions are determined by the law of

the State, the individual

is

invested with a

right in accordance with that law,

—a natural

right

is

The former

one which the universal

;

THE HOUSE OF REPRESENTATIVES.

oh. vih.]

sense of

mankind

deems such

:

in a state

of

89
society

civil

as the right to justice, to protec-

tion against injury,

and which may he claimed

by any inhabitant of a

free country,

whether

male or female, sane or insane, minor or of
full

age, or even a criminal.

Mr. Justice Story proceeds

to say

" The truth seems to be, that the right
many other rights, is one which, whether

:

of voting, like
it

has a fixed

foundation in natural law or not, has always been treated
in the practice of nations, as a strictly civil right, derived

from and regulated by each society according

own

to its

circumstances and interests." * * *
" If every well-organised society has the right to consult
for the

common good

and

of the whole,

ciples of natural law, this right is

union of society,

it

which

is

this right,

the end proposed.
the

seems

if,

upon the

prin-

conceded by the very

difficult to

assign any limit to

compatible with the due attainment of
If,

common good and

therefore,

any society shall deem

interests of the whole society best

promoted, under the particular circumstances in which
is

placed,

by a

restriction of the right of suffrage,

easy to state any solid ground of objection to

its

it is

it

not

exercise

of such an authority."*

He
in the

then goes on to show that every State

Union has acted upon
*

5

580.

this principle

THE HOUSE OF REPRESENTATIVES,

90

[ch.

vm.

that " in the adoption of no State constitution

has the assent heen
qualified voters ;"
fied voters

settled

asked of any but the

and who

has been, and

shall be the quali-

is

continually being

and altered by themselves, "no two

States having fixed the qualifications of voters

upon the same uniform

he adds, " will be seen how
most

"

basis."

little,

From

even in the

free of republican governments,

stract right of

suffrage,

this,"

any ab-

or any original in-

defeasible privilege, has been

recognised in

practice." *
If,

therefore, there be any person in this

country, of any pretensions to fair reasoning or

competent information, who
to

is

still

maintain that the franchise

more than a

is

prepared
anything

placed by the legislative

trust,

authority of the State, for the time being, in

the hands of those who, in the judgment of
that authority, will not abuse
it

for the

promotion of the

must have recourse

to

it,

but will use

common

good, he

the example of some

country whose practice has gone beyond that
*

§ 581.


THE HOUSE OF REPRESENTATIVES.

oh. viil]

91

of " the most free of republican governments,"

the several States of the American Union

such

if

be

there

—and

arguments which

to

those republican governments do not recognise.

The

fact has been, that in free States this

privilege of the franchise has been intrusted
to a greater

"without any

or less number,

State being able to assert that
is

own mode

its

exclusively founded in natural justice, or

most conformable
adapted

sound policy, or

to

to the public security."

entirely a question of local

cretion

;

for

#

is

*

best

best
It is

and temporary

"what may

is

dis-

promote the

public weal and secure public liberty in one

may

age or nation,
sults

under

ments

At

local, physical, or

moral predica-

essentially different."*

the time of the framing of the Constitu-

tion of the

the

totally fail of similar re-

manner

in the

United
in

States,

the differences in

which the franchise was

different

settled

States was remarkable.

In

Virginia, the exclusive right to vote was in
the freeholders

;

Rhode

in
*

§ 581.

Island and Con-

THE HOUSE OP KEPRESENTATIVES.

92

freemen

necticut, in the

;

sonal

property

paying taxes,

The

in

;

or

question was

which

vention

whether

it

and more

Massachusetts,

in

in persons possessing a given

amount

other States, in

having a fixed

up

the

would not be more

of per-

persons

residence.

much debated by

drew

[ch. viii.

the con-

Constitution,

fair

and equal,

likely to insure a direct

and imme-

diate representation of the popular opinion, if

a uniform qualification for voting were adopted
for the

House

of Representatives*

It

was,

however, unanimously decided otherwise, and

upon grounds precisely similar

to those

recommend

are held to justify and

which

the very

great diversity of qualifications for the elective
franchise that has so long existed in this coun-

On

try.

ing

is

this point

as follows

Mr.

Justice Story's reason-

:

" It might be urged that

it is

far

from being

clear,

upon

reasoning or experience, that uniformity in the composition
of a representative body

is

either desirable or expedient,

founded in sounder policy, or more promotive of the general

good, than a mixed system, embracing and represent-

ing,

and combining,

distinct interests, classes,

In England, the House of Commons,

and opinions.

as a representative

;

ch.

THE HOUSE OF REPEESENTATIVES.

vm.]

body,

93

founded upon no uniform principle, either of

is

*

*

bers, or classes, or places.

And

reform which has found public favour in that country,
of these diversities have

portant checks

num-

in every system of

many

^een embodied from choice, as im-

upon undue

legislation, as facilitating the

representation of different interests and different opinions,

and as thus securing, by a well-balanced and
representation

manent

of all

intelligent

the various classes of society, a per-

protection of the public liberties of the people,

a firm security of the private rights of persons

and

and pro-

perty."*

(Accordingly, the diversities of franchise in

each State were adopted as the basis of the
elections for the representatives of the

the electors " of the most

the

State

numerous branch of

being fixed

legislature"

Union

upon

as

those to be invested with the franchise for the
election of the

members

of the

House

of

Re-

presentatives.

The
of

the

elected

length of time for which the

House

of

was not

members

Representatives should be
settled by the framers of the

Constitution without considerable differences
of opinion.

They had

before

them the varied

examples in their own country, of Virginia,
*

§ 585.

THE HOUSE OF REPRESENTATIVES,

94
electing

representatives

its

North and South Carolina
necticut

and Rhode Island

for

for

seven

[ch. vnj.

years,

two years, Conmonths, and

for six

Abstract maxims

the other States for a year.

and theoretical arguments had great influence
in creating a preference for annual elections.

The
the

resolution

members

ultimately adopted was,

House

of the

that

of Representatives

Whether

should be elected for two years.
not this was a wise decision,

or

may be gathered

from the views which Mr. Justice Story does
not hesitate to place before his countrymen,

with his usual fairness and honesty.
position
"

is,

The aim

that
of every political Constitution

be, first to obtain for rulers
to discern,

society

;

His pro-

and most virtue

men who

is,

or ought to

possess most

to pursue the

wisdom

common good

of

and, in the next place, to take the most effectual

precautions for keeping

them

virtuous, while they continue

in their public trust."*

The

latter

object

may

to

some extent be

attained by frequency of elections.

frequent they ought to be

is

clearly a matter

for the exercise of a wise discretion.

*

§ 589.

But how

For

it is

THE HOUSE OF REPRESENTATIVES.

CH.vm.]

95

equally clear that too great frequency of elections

would completely defeat the first-named

object.

The

reasons

urged by Mr. Justice Story

against too great frequency of elections are

many and

If they interfere too

various.

much

with the pursuits of the people, they will give

and inattention

rise to a general indifference
to elections.

If they produce frequent changes

in the public councils, they will introduce imbecility, irresolution,

and the want

of

due

in-

formation in those councils.
"

Men,

to act -with vigour

and

effect,

must have time

to

mature measures, and judgment and experience as to the
best method of applying them.

on

to their conclusions

"The

multitude."*

They must not be hurried

by the passions or the fears of the

very frequency of

elections

has a

tendency to create agitation and dissensions in the public
mind, to nourish factions and encourage restlessness, to
favour rash innovations in domestic legislation and public
policy,

and

to

produce violent and sudden changes in the

administration of public

affairs,

excitements and prejudices."
great

\

founded upon temporary

"It operates

also

as

a

discouragement upon suitable candidates offering

themselves for the public service.

*

§ 592.

They can have
t § 593.

little

[cam

THE HOUSE OF REPRESENTATIVES,

96

opportunity to establish a solid reputation as

and

when

patriots,

their

schemes are

broken in upon by demagogues, who
suspicions,

may

create injurious

and even displace them from

their measures are

And

fairly tried.

grow weary of continued appeals

statesmen

liable to be suddenly-

office

before

they are

apt to

to vindicate

their cha-

racter and conduct at the polls, since success, however tri-

umphant,

of such short duration,

is

" It

easily

loosened." *

comes

to the task with

is

and confidence

not enough that a

is

so

member

an upright intention and sound

judgment, but he must have a competent degree of knowledge of

all

the subjects on which he

and he must have

The

latter can

rience

skill as to

scarcely be

and training

the best

is

called to legislate

mode

of applying

it.

acquired but by long expe-

The

period

some proportion

to the

in the national councils.

of service ought therefore to bear

variety of knowledge and practical skill which the duties
of the station demand."!

Every measure that comes before the
lature

is

rights,

legis-

be discussed with reference to the

to

interests,

and pursuits of the whole

people.
"
tion,

Large and enlightened views, comprehensive informa-

and a just attention

to local peculiarities, products,

and employments, are indispensable
useful

member

obvious, that

if

*

of

the

legislative

qualifications" for a

body.

" Yet

it

is

very short periods of service are allowed

§ 602.

t

§ 603.

THE HOUSE OF REPRESENTATIVES.

ch. viii.]

to

97

members, the continual fluctuations in the public

councils,

and the perpetual changes of members,

will be

very unfavourable to the acquirement of the proper knowledge,

and the due application

set of

men

formation,

when

One

will

of it for the public welfare.

have just mastered the necessary in-

it will

be succeeded by a second

set,

who

are to go over the same grounds, and then are to be suc-

ceeded by a third.

So that inexperience, instead of practi-

wisdom, hasty

legislation, instead of sober deliberation,

cal

and imperfect

projects, instead of well-constructed systems,

would characterise the national government."*

These and other considerations of obvious
weight and importance, as affecting the chances
of a country getting

it,

best informed and most

and most trust-worthy men

experienced
serve

its

are brought together by

Story with

much

care and in

much

Mr.

to

Justice

detail,

and

lead directly to the conclusion, which indeed

he does not take the trouble
the election of

members
the

to disguise, that

for the

House

United States

presentatives

of

years only,

not well calculated to

is

conditions which he lays

which a country
rulers

men who

is

most

down

Re-

for

two

fulfil

the

as those

under

likely " to obtain for

possess most
*

of

wisdom

§ 604.

F

to dis-

[cam

THE HOUSE OF REPRESENTATIVES,

98

and most virtue

cern,

good of

He

society."

to pursue, the

common

thinks the decision, by

which the period of two years was adopted
stead of one, both politic and wise

;

in-

* but the

whole scope of his argument, and his remark
that, since the great increase in territory

and

population of the United States of late years,

" a far more exact and comprehensive knowledge

now

is

necessary to preserve the adjust-

ments of the Government, and
daily operations, than

dreamed

of,

to carry

on

its

was required, or even

at its first institution," t prove that,

in his opinion, a longer duration of the term for

which the members of the House of Representatives are elected,

would conduce more

to

the general interests of his country.

The

inferior position which, both

public estimation

House

and

in

actual

in

the

power, the

of Representatives holds in the system

of the United States

with the

Senate,

Government,

will

as

compared

be adverted to here-

after.

The

questions relating to the qualifications
*

§ 611.

t

§ 605.

THE HOUSE OF REPRESENTATIVES.

ch. vra.]

for

members

House

of the

of Representatives,

and

their age, religious opinions,

may be

99

citizenship,

passed by, as not being likely to be

regarded as very applicable

to

any of

the

matters of controversy in this country.

The

apportionment of the representatives

among

the States was, by the Constitution,

fixed at one for

each State

every 30,000 inhabitants

;

one representative

;

have

to

at least

and an arrangement was introduced applicable to the slave-holding States, declaring that

the

number

by adding

in those should

to the

"be determined

whole number of free persons,

including those bound to service for a term of
years,

and excluding Indians not taxed,

fifths of all

Much

three-

other persons."

difference of opinion

existed at the

how

the apportion-

time upon the question of

ment ought

to

be made.

One

principle,

much

urged, tended to preserve an exact equality of

power between
Confederation.

property

the

all

the States, as under the

Another
basis

maxim under which

of
this

aimed

at

making

representation.

view was sought
F 2

The
to

be

THE HOUSE OP REPRESENTATIVES,

100

established was,
tion should

"That taxation and

go hand in hand."

[oh.

vm.

representa-

This had been

a favourite theory with the American people *
;

but

it

was understood in a sense very different

from that which has been usually assigned

to

by the democratic school of more recent
In America it meant " that representimes.
it

tation should be in proportion to property."!

Accordingly,

it

was argued that

" might commend
cause

itself to

this principle

some persons, be-

would introduce a salutary check into

it

the legislature in regard to taxation, by securing, in

some measure, an equalisation of the

who were
common con-

public burdens, by the voice of those
called to give

most towards the

tributions."^:

This

maxim, from that drawn from

of the above

by the modern
" that every
a vote;"
should

man who

or,

"that

pays taxes should have
it

is

unjust that a
also

man

being repre-

These are only other forms of the

assumption,
§ 632.

it

school of democracy, namely,

be taxed without

sented."

*

a totally different result

is

that

the
t

franchise

§ 632.

to

%

be just
§ 632.

THE HOUSE OF KEPKESENTATIVES.

ch. viil]

should be universal

;

101

and are equally open

the question of what meaning

:
to the term " universal " whether or not

to include

females

well

as

it is

and whether or not the

;

man of twenty years
much as the man of
cluded,

to

be attached

is to

twenty-one,

the

as

who

of age,

taxed as

is
is

to

be ex-

one of nineteen or

eighteen.

The

basis

numbers and property, was

regards
fixed,

should

ratio." #

fore,

to

it

was not confined

or property,

is

it

apportioned in the same

be

Thus

persons

finally

"that representation and direct

was,

taxes

but

on which the representation, as

numbers

an admixture of
a certain

all

extent,

" either

to

or

wealth,"

similar, there-

;

in

intention,

to

our own, and designed, like our own, " by apportioning influence

and

to

among

each," to introduce

perpetuate " vigilance,

caution,

and

adjust

the

mutual checks." t

The new

apportionments,

to

representation to the increase of the population,

take place every ten years.
*

§ 632.

t

The

§ 633.

results

THE HOUSE OF EEPEESENTATIVES.

102

have been remarkable.

[ch. viti.

In 1790 the population

of the United States was about 3,929,000

1830

was about 12,866,000; in 1840

it

;

in

it

was

of

Re-

17,063,353; and in 1850,23,191,074.

The numbers composing

the

House

presentatives were originally sixty-five

they

;

have, by the Act of July, 1852, been increased
to

234

and the proportion of representatives

;

to population has

been raised

first,

in 1792, to

one for every 33,000 of the population
in

1811, to one for every 35,000;

:

next,

then, in

1832, to one for every 47,700; by the Act of

June 25, 1842,

one for every 70,680; and

to

by the Act of 1850,

The
bution

particular
is

arrived

to

one for every 93,420.

mode by which

at,

and the

this distri-

fractional

numbers

dealt with in apportioning representatives

and

direct taxation, though matters at one time of

much

controversy in the United States, need

not occupy our attention.

Neither need we be

detained by the few other points adverted to

under

One

this head.

or two

additional remarks

only are

necessary in order to record Mr. Justice Story's

the house of eepresentatives.

ch. viil]

views

as

the

to

House

mental qualifications

member

a

expected of

attainments

He

Representatives.

of

103

and

of

says

the
that

" Information of peculiar local interests
of less value and importance
of the

of

a

House

a

in

is

member

of Representatives than in that

member

of

a

State

legislature.

The

knowledge required of a national representative is necessarily of

a more large and compre-

hensive character."*

.

.

.

"

Few members, com-

paratively speaking, will be found ignorant of
local interests

;

but time, diligence, and a rare

union of sagacity and public

spirit,

are indis-

pensable to avoid egregious errors in national

measures."!

..." The

views, feelings,

and

very devotion to local

interests,

which naturally

tends to a narrow and selfish policy,
just disqualification

of

Congress.

policy, a

and

A

and reproach
liberal

and

knowledge of national

interests,

to

may be a
a member

enlightened

rights, duties,

a familiarity with foreign go-

vernments and diplomatic history, and a wide
survey of the operations of commerce, agricul*

§ 659.

f

§

660.

THE HOUSE OP KEPKESENTATIVES.

104
ture,
to

a

and manufactures, seem indispensable
discharge

lofty

Reference
in

[oh. viil

is

of

made

then

functions." *

his

to the frequent habit

Great Britain, " of selecting men

districts,

and populous

of large

sentatives

who do not

for reprecities

reside therein,

and

and can-

not be presumed to be intimately acquainted

with their local interests and feelings.
choice, however,

is

made from high

The

motives, a

regard to talents, public services, and political

An

sagacity."!

opportunity occurs,

after

a

few pages upon another branch of the subject,
of touching upon the question as to whether
large or small electoral districts afforded the

best prospect of obtaining for the service of

the State the best and most highly-qualified
class of representatives

Mr. Ames
by him

in

is

quoted, from a speech delivered

Congress in 17&9, in favour of the

former, " because small

ducted by intrigue
nothing but

real

secure an election."
*

and the opinion of

;

§ 659.

;

districts

may be

con-

but in large districts

dignity

The

of

character can

theory of 1789 cant

$ 661.

CH.vm.]

THE HOUSE OF REPRESENTATIVES.

not, in

Mr.

105

Justice Story's opinion, look for

support in the facts of the succeeding
years.

" Unfortunately," he

says,

fifty

" the expe-

rience of the United States has not justified

the

belief

choose

and

men

that large

districts

will

always

of the greatest wisdom, abilities,

real dignity. " #
*

§ 675, note.

F 3

106

ELECTIONS.

CHAPTER

[ch.ix.

IX.

ELECTIONS.

The

times,

and manner of holding

places,

and representatives

elections for senators

the

first

by

is,

clause of the fourth section of the first

article of the

Constitution, left to the State

legislatures.
"

The manner

is

various; and perhaps the power has

been exerted, in some instances, under the influence of
local or party feelings, to

and

in principle

choice, or in the

representatives

whole State

;

policy.

mode

are

an extent which

There

is

indefensible

is

no uniformity in the

of election.

In some States the

chosen by a general ticket for the

in others they are chosen singly in districts

in others they are chosen in districts

composed of a popu-

lation sufficient to elect two or three representatives

in others the districts are sometimes single,

elected

;

all

the votes to entitle

in others (as it is in England),

he has a plurality of
choice

others

*

is

§ 826.

votes.

him

to

it is

be deemed

sufficient if

In some of the States the

by the voters viva voce

it is

and

In some States the candidate must

united in the choice.

have a majority of

;

and sometimes

(as it is in

England)

;

in

by the ballot."*

Tucker's Blackstone's Commentaries, vol.

i.,

App. 192.

ELECTIONS.

ch. ix.]

These

107

irregularities have, according to

Justice Story, been productive

Mr.
and

of evils

" some inconveniences to the public service." #

He, however, abstains from going

into details,

and merely adds that the existing system

is

maintained by the public opinion.

Far greater, however, than any of the

in-

conveniences which Mr. Justice Story does, in

a few words, touch upon, such as the occasional
fact of a district, or

deprived of
the time of

its
its

even a whole State, being

vote at Congress by reason of

holding

which has been

its elections, is

the evil

steadily gaining ground,

of

the whole machinery of the elections gradually
falling into the

themselves

to

hands of persons who devote
occupation

the

of

arranging

them, of fixing upon and bringing forward the
candidates, of creating for

them a name and

character by means of unceasing eulogies in
the public press,

of dictating to

policy, of describing in its

the course which

it

they will take on

all

is

them

most minute

their

details

expected of them that

the leading questions be*

§ 826.

ELECTIONS.

108
fore the public,
interest,

and

[ch. ix.

whether of internal or external

finally,

when

the elections have

terminated in success, looking for their reward

from the various sources within the means of
the predominant political party, should their

candidate happen to belong to
It cannot

it.

be doubted that this system

is

one

of the results of the great frequency of elections.

Persons of fixed and steady occupations,

who

compose nearly the whole community among a
people so occupied with commerce and industry
in its various forms as the people of the
States,

may

occasionally,

United

under the pressure or

excitement of some important question, give

up

their time

and attention

political contests

suffrage
cities,

is

;

but in a country where the

so extended

the population

surfaces,

to the details of

dwelling

in

;

is

where, except in the
scattered over wide

small

villages

distant

from each other, or in insulated farms, with
often very imperfect

means of communication,

along half- formed roads,

it

cannot be a matter

of surprise that such persons should, in the or-

dinary course of things, leave the

field of politi-

ELECTIONS.

ch. ix.]

cal agitation,

and the

109

difficulties

election contests, open to those,

and turmoils of

who make

it

a

matter of business, and can therefore devote

This

to it the principal part of their time.

however,

process,

most calculated

to

is

manifestly not

one

the

bring forward for the service

of the State, candidates

who come up

to the

standard which Mr. Justice Story has, with a

high sense of

up before

its

truth and importance, held

his countrymen.

I do not wish to imply that

no such

in political agitation, or in the "

elections" exist

But

it

as

among

ourselves.

no human system

is

traffickers

working of

Far from
perfect,

so

neither has that of the United States escaped

an

evil incident to the peculiar political

isation
feel

it

has chosen

;

organ-

and therefore we may

assured that we should not escape

similarly aggravated degree,

it

in a

under a franchise

unduly extended, and a greater frequency of
elections.

But,

if possible,

a

still

greater and more

grave departure from the theory of the Consti-

110

ELECTIONS.

[ch. ix.

tution, as it existed in the eyes

of

its

careful

and expectations

and prudent founders, has taken

place in the gradual lowering throughout nearly
all

the States of the Union, and the entire

abandonment in two-thirds of them, of those
qualifications for the exercise of the franchise

which

when

existed

These

adopted.

Constitution was

the

qualifications

have been

al-

ready described,* and have been seen to have

been founded on property, on residence, on the

payment of
different

or

varying in degree in the

taxes,

but

States,

resting

all

other requirement,

the

principle

of

stability:

justified,

undue

legislation,"
interests

general good

;

their

an

one

essential

very

variety

as affording " checks upon

being

individual

as

on

and

as tending to protect

without

sacrificing

the

and defended by the example

of their utility in helping to produce and to

maintain a system of

fair

and equal

liberty,

such as we happily enjoy in this country.
It will

be remembered that, by clause
* Page

91.

1 of the

;

ELECTIONS.

ch. ix.]

Ill

3rd section of the Constitution, the senators
of the United States are to be elected by the
legislatures of the individual States

section

the

2 of the

first

the

article,

House of Representatives

and by

;

members

of

United

of the

States are to be elected by the electors of the

most numerous branch of the State
tures

;

House

The

in other words,

legisla-

by the electors of the

of Representatives of each State.

condition of the franchise, therefore, in

the individual States, has a most direct bear-

ing upon the elections for the senators and
representatives of the United States.*

What
is,

this

franchise has gradually

accordingly,

a matter of

portance in reference
Constitution,

and

to the

the

first

To

its

to the question

whether
it

was

it

at

formation sixty-five years ago.

exhibit this point I will avail myself of

* The individual States are divided into
members of the House

the smaller elect the

of the State, the larger the Senate.
believe, only one exception (that of
for both.

im-

United States'

continues in theory and in fact what
the time of

become

electoral districts

of Representatives

The franchise

is,

with, I

North Carolina), the same

ELECTIONS.

112

Mr.

of

authority

the

[oh. ix.

whose

Kent,

Justice

" Commentaries on the American Constitupublished in 1844, are held in equal

tion,"

estimation with

and both are
of

those

language

At
Mr.
"

pp.

is

Mr.

Justice Story,

fully entitled to a place beside

Blackstone,

wherever the English

spoken.

227-229,

Justice

The

those of

vol.

i.,

of his learned work,

Kent thus expresses himself:

progress and impulse of popular opinion

is

rapidly

destroying every constitutional check, every conservative

element, intended by the sages

American

who framed the

earliest

constitutions, as safeguards against the abuses of

popular suffrage.
" Thus, in Massachusetts, by the Constitution of 1780, a

denned portion of
an

in

elector;

real or personal property

— that

qualification

by the amended Constitution
"

By

of 1821.

the practice under the Charters of Rhode Island

and Connecticut, a property
constitute freemen

Ehode

was requisite

was dispensed with

and

Island, but done

qualification

voters.

This test

was requisite to
is

continued in

away with in Connecticut by

their

Constitution of 1818.

"

The New York

Constitution of

1777 required the

electors of the Senate to be freeholders, and of the Assem-

bly to be either freeholders, or to have a rented tenement
of the yearly value of forty shillings.
stitution of

1821 reduced

The amended Condown to pay-

this qualification

:

ELECTIONS.

ch. ix.]

ment

113

of a tax, or performance of militia duty, or assess-

ment and work on the highways.

But the Constitution

as

again amended in 1826, swept away all these impediments
to universal suffrage.

" In Maryland, by their Constitution of 1776, electors

were

be freeholders, or possessing property to the amount

to

of 30Z.

but by legislative amendments in 1801 and 1809

;

made

(and amendments are allowed to be

an ordinary

gislature) all property qualification

"

The

in that State

confirmed by the next succeeding

statute, if

by
le-

was disregarded.

Constitution of Virginia, in 1776, required the

electors to be freeholders, but the Constitution of

1830

re-

duced down the property qualification to that of being the

owner of a leasehold

"In

Mississippi,

estate or a householder.

by the Constitution of 1817,

were to have been enrolled in the

electors

militia, or paid taxes

but those impediments to universal suffrage were removed

by the new Constitution of 1833.
" So the freehold qualification, requisite in certain cases

by the Constitution of Tennessee of 1796,

is

entirely dis-

continued by the Constitution of 1835.
" All the State constitutions formed since 1800 have

omitted to require any property qualifications in an elector,
except what

may

be implied in the requisition of having

paid a State or county tax, and even that
stitutions

is

not in the con-

more recently formed or amended, except

Bhode Island Constitution of 1843.

*

*

in the

*

" Such a rapid course of destruction of the former constitutional checks is

matter for grave reflection; and to

counteract the dangerous tendency of such combined forces
as universal

suffrage,

frequent elections,

all

offices

for

114

ELECTIONS.

[ch. ix.

short periods, all officers elective, and an unchecked press

and

to

political

prevent them from racking and destroying our
machines, the people must have a larger share

than usual of that wisdom which

and easy

able, gentle,

The
States

'

first

pure, then peace-

"

actual state of the suffrage in those

where the right of suffrage

without any qualification
described
"

is

to be entreated.'

New

South Carolina, Kentucky, Indiana,

chigan,

exercised

thus

is

:

In the States of Maine, Vermont,

land,

is

whatever,

York, Mary-

Illinois,*

Mi-

Missouri, Mississippi, Tennessee, Arkansas, and

Alabama, no property qualification whatever, not even
paying taxes or serving in the

militia, is requisite for the

exercise of the right of suffrage.

Every

citizen of the age of twenty-one years,

free

male white

and who

shall

have

been a resident for some short given period, varying in
those States from two years to three months,

is

entitled to

vote."

To
are

this

now

to

enumeration the following States
be added

:

— Florida,

consin, Iowa, California

;

and

Texas, Wis-

finally the

aristocratic State of Virginia, which,

25th of October,
* In

Illinois,

1851,

adopted

the

once

on the

same

" aliens, being residents, are entitled to vote."


ELECTIONS.

ch. ix.]

115

ultra-democratic form of constitution as the

by a vote of 7*5,7^8

States above named,

11,060 against

The

it.

following States have retained the sem-

blance of a qualification
" In the States of

:

New Hampshire,

Pennsylvania,

necticut,

Louisiana, the elector

is

Massachusetts, ConOhio,

and

required, in addition to age

and

Delaware,

residence, to have been assessed
*

to

Georgia,

and paid,

or,

in Ohio,

charged with a State or county tax, or in Connecticut to
'

have served in the militia."

In Rhode Island, North Carolina, and
Jersey, a qualification as to property
quisite,

"

but in the latter

The Rhode

is

New

is still

re-

rendered nugatory.

Island Charter of 1663 pre-

scribed no regulation as to the right of suf-

In 1724 an Act was passed limiting

frage."

the franchise to those

who

possessed a free-

hold estate of a certain value, or was the
eldest

son of a freeholder.

This requisite

value was said to be 134 dollars.
Constitution of 1843 has defined
that

sum

The new
it to mean

clear of all encumbrances,

and has

required residence in the State of two years,

and of

six

months

in the city or

town in which

ELECTIONS.

116

But an

the elector votes.

property qualification

is

[ch. ix.

elector

having no

entitled to vote if

he

has resided during the six months preceding
the election, and been registered in the pre-

and has

vious year,

or been

dollar,

also paid a tax of one

enrolled

and served in the

Naturalised citizens must have the

militia.

freehold qualification above required

;

and no

person can vote to impose a tax or expend

money

in

any

city or

town unless he shall have

paid a tax within the year preceding, upon
property valued at 134 dollars.
*

*

*

that relating

to

" These provisions, together with

and compensation,

the judicial tenure

render the aspect of the constitution of that State more
wise and conservative than any other State constitution
recently framed or amended.

seems

to stand

Indeed, that constitution

pre-eminent in value over any of the exist-

ing State constitutions in the guards

one of the most alarming
cities

to our

it

introduces against

evils incident in large

democratical establishments

—I

towns and

mean the

fraudulent abuse of the right of suffrage."

In North

Carolina,

the

electors

of

the

Senate must be freeholders, and the electors
of

the

House

of

Commons

(the

name

is

ELECTIONS.

ch. ix.]

still

117

.

retained from the colonial period) must

have paid public taxes.
In

New

electors

Jersey, by the law of 1798, the

must have a clear

have resided

and

estate of 501.,

for a year in the country.

" But

the election law of 1839 has reduced this constitutional

declares,

assessed

check down
every

that

to worthlessness, for it

person

who has been

and paid a State or county tax within

two years preceding the

deemed worth

50/.

*

election,

is

to

be

clear estate in the State.

5

"

This almost entire destruction, in so short
a period, of

all

those " constitutional checks

and conservative elements" in the franchise
of

the

individual

States,

which had been

regarded by the framers of the Constitution
as

essential to genuine liberty,

altered the basis

has entirely

on which those able

men

placed the Constitution, and on which they
relied for its continuing to be

dence and wisdom

what

their pru-

left it.

In determining that the Senate of the United
States should be elected by the State legislatures,

they expected

that

those

legislatures

118

ELECTIONS.

would be composed,

first,

[ch.ix.

of a

Senate re-

turned by a class of electors representing the

more

stable elements of the

secondly, of a

ing

on

House

similar

community

and,

;

of Representatives rest-

elements,

namely,

on

the

electoral qualifications of property, residence,

and the payment of

The

taxes.

process of change in this short space of

time has swept away these expectations
the Senate of the United States

is

now

;

and

elected

by State legislatures, based on a franchise unrestricted

by any of the above

qualifications,

except in the very few instances above noticed

and the members of the House of Representatives

of the United States are returned by

direct election,

by voters having, in twenty of

the States, no property qualification at

all,

and

in nine next to none, the remaining two only

having retained any valid qualification.
It will,

I imagine, be readily granted that

this great

change in the basis of power can-

not

have

taken

place

without

impressing

upon the Senate and House of Representatives
of the United States a quality and direction to

;

ELECTIONS.

ch. ix.]

119

a very considerable extent in accordance with
it

;

and therefore much more

directly

amenable

than the legislative body

to popular impulses

contemplated by the framers of the Constitution.

But the above great change

is far

from being

the only proof of the progress of ultra-democratical opinions

which the legislation of that

Among

country has afforded of late years.

the most remarkable has been the adoption,
in

more than two-thirds of the

the practice of electing the

pular

vote

thus striking
dence,

and
at

for

the

Judges, by poperiods

short

root of their

among

the

of freedom, and of protection to

The

perty.
;

of

only

indepen-

and violating a principle which has

ever been held to be

upon

States,

fact

first

elements

life

and pro-

has been already touched

the extent to which the practice has

been carried will be noticed in
It is a

common answer

its

in the

proper place.

United

States,

in reply to questions as to the prospects of so-

ber and temperate government, and the preservation of the just and equal rights of

all,

that

120

ELECTIONS."

the democratic influence

[ch. ix.

extending

is

itself in

other countries besides the United States, and
that

it

made

has

itself

much more

country during the last
ever

done before.

felt in this
it

had

however,

be-

years than

fifty

There

is,

changes that have

tween the constitutional

taken place in this country and those of the

United

States,

this

marked

difference,

from the prin-

their changes are departures
ciples of their Constitution

that

ours have been in

;

accordance with our constitutional principles,
enlarging
greater

with

all

their

number

scope

so

as

to

embrace a

of individuals, but preserving,

the guards that cautious

wisdom could

devise, the principles themselves, as the best

guarantees of freedom, of safe and satisfactory
progress,

of

high

civilisation,

and national

honour.

There

is

another subject which requires to

be noticed under this head of the elections in
the United States, namely, the

mode

of giving

the votes, which, as has been seen (p. 106),
in

some States appointed

others by "ballot."

to

is

be viva voce, in

ELECTIONS.

CH.ix.]

It

to repeat

necessary

is

121
that

this

never means, in the United States,
ballot,

unless

when

rare,

added
In

,,

to

the

in

the

" secret

which are

instances,

word " secret"

word

is

expressly

it.

this country

we invariably

the word " ballot," the

mode

associate with

of giving a secret

vote by dropping a " ball" into a covered box,
in the

manner

too well

known

to

need

to

be

described.

In the United States the word " ballot" has,
in its general acceptation, nothing to do with

the word " ball," but

means " a piece

of paper,

with the names of the candidate or candidates
written or printed upon

it."

In the Southern and Western States generally the voting is entirely open,

and usually

viva voce.

At

all

elections

in

the other

States,

friends of the different candidates stand

the

voting

places,

with

the

the

round

written

or

printed voting papers (called tickets) in their

hands, and as each voter approaches, he takes

from the hands of one of the agents of the

122

ELECTIONS.

whom

candidate or candidates for
to vote,

one of these

the case

may

be,

all

the

folded or unfolded as

it,

to

he intends

openly before

lists,

world, and delivers

[ch. ix.

the persons taking the

poll.

The

tickets are

printed
paper,

;

now

universally, I believe,

and being printed upon coloured

— the colour or some distinguishing

which the candi-

vice indicating the party to

dates belong,

paper

coloured

thus

the very fact of presenting a

might be folded up,

marked, though

or

in itself at once

which side the voter takes
It will

de-

be desirable

it

shows

at the election.

to describe

by a few short

quotations from the laws of some of the principal States, the different arrangements in re-

gard

to this matter in each.

By
(1839

chapter 42 of the Acts of Massachusetts
to 1846), relating to the election of the

governor,

lieut.-governor,

presentatives of the

senators,

Commonwealth,

and
it

is

re-

en-

acted
" Section

5.

That no vote

officers presiding at

any such

shall be

received by the

election, or at

any election

;

ELECTIONS.

ch. ix.]

for select-men

aldermen, or

123

and town-clerk of any town, or

common

for mayor,

council of any city, unless the

same
and

shall be presented for deposit in the ballot-box, open

unfolded

name

;

nor shall

same

of the person offering the

found upon the
or by

any such vote be so received

list

until the

shall have

and checked by the presiding

some one appointed by them

been

officers,

therefore."

I have described in a former

volume* the

change made in the law of Massachusetts in
1851, by which, instead of this manly

mode

of

giving a vote by presenting the voting paper

"open and unfolded,"

the secret ballot was

attempted to be introduced into practice

;

and

I mentioned the process of voting which I

witnessed at

means

in

Boston,

under,

though by no

accordance with, the new law.

I

described also the indignant feeling exhibited
at

meeting of upwards of 5000 of the

a

electors of

Boston and

its vicinity,

against the

attempt to impose secrecy upon their votes
their utter repudiation of

men who had
State,

a

it,

duty to

as

unworthy of

perform

to

the

and were neither afraid nor ashamed

* Notes on Public Subjects, &c.

Murray.

1852.

G 2

to

ELECTIONS.

124
perform
that the
other,

it

openly

;

[oh. ix.

and their bold declaration,

man who was

either the one or the

was neither worthy of having a

nor entitled

to

secrecy in the

the part of

have one.

mere

vote,

Indeed, the idea of

act of giving the vote,

5000 men who came together

great public meeting to declare

on

to

a

their senti-

ments, was altogether a contradiction and preposterous.
to

Secrecy in the act of voting must,

be effectual as a protection to the voter, be

accompanied with secrecy and

silence,

toge-

ther with hypocrisy, on the subject of politics,
for his

whole

life,

which,

contemptible, and which
in any country,

much

if possible,
is

less

would be

plainly impossible

a free one.

So strongly were these sentiments entertained by the electors of the

Whig

party in

Massachusetts, that, on that party returning to

power, the law relating to secrecy was altered
in the spring of this year (1853), having been

only carried originally by the democratic party

by a very small majority, and under the stimulus
of particular circumstances, which I have ad-

verted to in the volume above-mentioned.

ELECTIONS.

CH.ix.]

I

am

125

informed by a friend,

who has

the best

means of knowing what was done, that the
modification introduced into the law by the

Whig

party in the spring was the allowing

the voter either to put his vote into an envelope, or to deposit

The

it

open, as before.

question has since been brought before

the " Convention," which has been

sembled

lately as-

to discuss the revision of the

chusetts' Constitution.

The

Massa-

existence of such

a Convention in a State like Massachusetts,

where the population has been more
the ideas of republican government

and with a greater leaning
of the past,

is

fixed,

more

and

sober,

to the associations

probably the strongest proof that

could be given of the progress of ultra-democracy in the United States.
tion,

which assembled

in

In

this

May, 1853, the

mocratic party had a large majority
the projected

amendments

Conven-

;

and

deinto

of the Constitution

which they drew up, and which were submitted
to the people in

November, they re-introduced

the proposition to require the votes to be en-

126

ELECTIONS.

The proposed new Con-

closed in envelopes.

was rejected, but by a narrow ma-

stitution

jority

;

[ch. ix.

the votes being (in round numbers),

For, 62,000; Against, 67,000. #

The

expression used in the election law of

the State of Ohio,

is

another example of the

ordinary meaning attached to the word " ballot."

By

the

43rd

chapter

of the State of Ohio,

sec.

of

9,t

the
it

is

statutes

enacted,

" That each elector shall, in full view, deliver
to

one of the judges of the election, a single

ballot or

piece of paper,

written or printed the

on which shall be

names

of the persons

voted for," &c., &c.

Nothing

is

said about folding the paper for

the purposes of concealment, but in the next
section

" the judge of the election "

is

simply

instructed to put the paper in the box " with-

out inspecting the names written thereon."

Again, in the election law of the State of

Maine (March, 1821), chap.
* November

15.

A

11 5, sec. 6, nothing

few votes not returned.

t

1841.

ELECTIONS.

ch. ix.]

is

127

said about the votes being secret

but

;

it is

solely required of the " Select-men and Asses-

sors presiding"
shall call

them

as

many

chosen

the election,

that " they

on the voters in such meeting quali-

fied for choosing

of

at

such

to give in

officers,

their votes

requiring each

on one

list,

for

different persons as are then to be

and by section

;"

no vote

9>

to

is

be

received " unless delivered in writing by the
voter in person."

And

by the Election

Law

of

the same State for 1841, chap. 518, sec. 3, " the
ballots for the election of Governors, Senators,

Representatives,

&c.,

are

to

be written or

printed on clear white paper." # #
I will

now give a couple

the law

makes a show

of instances in

of requiring

in the candidates voted for

so vague

value

By

is

and imperfect,

,

which

secrecy

but in a manner

as to

prove that no

attached to the provision.

the revised statutes of Indiana (1848),

chapter 5,

art.

4,

sec.

31,

it

that " the ballot be a paper ticket
contain, written

is

provided

which

shall

or printed, or partly written

and partly printed, the names of the persons

for

ELECTIONS.

[ch. ix.

the elector intends to vote." # *

And

128

whom

by section 32, " the inspector
his ballot,

and

shall

in the presence

receive

of the other

judges put the same, without being opened or
examined, into the ballot-box." # *

By

the election law of the revised statutes

of the State of
sec. 7>

"The

New York

(1845-6), chap.

electors shall vote

by ballot

6,

and

;

each person offering to vote shall deliver his
ballot, so folded as to conceal its contents, to

one of the inspectors, in the presence of the

board of inspectors."

Whatever show

of concealment there

may

be in these provisions, and in similar ones in
other States, the universal practice, as
well

known,

is,

that there

is

to

very

no concealment

whatever, and that voters, in point of

more attempt

is

fact,

no

disguise their inclinations in

favour of particular candidates, or their votes,

than they do in this country.

The

following extract from a

paper describes with so
actual
State,

much

New York

particularity the

process of elections in that city and

and the manner

in

which the

elections

ELECTIONS.

ch. ix.]

are " worked," that

will

be read with some

I should not insert

interest.

did

it

129

it

in these pages,

not exactly correspond with the accounts

it

me

given

of those

scenes in that country, by

persons on whose fairness and strict veracity I
place the most implicit confidence.

It

amply

confirms also what has been said above, as to
the hands into which the elections have

now

fallen.

From
1852
"

New

the

York Herald of

May

20th,

:—
THE COEKUPTION OF THE PEIMAEY ELECTIONS.

The whig primary elections that have been carried on
during the last week and the present, in this city, exhibit
"

more than the ordinary amount
fraud, of every description.
elections,

managed

both

of

whigs

of bribery, corruption,

The way
and

in

democrats,

have

been

for several years past in this city, is a subject of

comment and complaint among

all classes

appears to have been thought of for the
able

and

which the primary

citizens,

;

but no remedy

evil,

and respect-

instead of going to those elections,

and

taking such a part in them as would keep the rowdies and
politicians in abeyance,

their hands,

and

have surrendered their rights into

for the

the contest, preferring to

most part have kept aloof from

mind

their

own

private business

rather than be exposed to collision with bullies, in minding

the business of the public, which

is

everybody's business

G 3

130

ELECTIONS.

The

and nobody's.

result

is,

[ch.ix.

that corruption prevails to

an alarming extent in these primary party
rule and control the legal

elections,

which

people

elections of the

—the

nominees of the rum and rowdy delegates, no matter how
unfit for office, carrying all before them, according to the

usages of party, in voting for what they call " regular

nominations," but which ought to be called irregular, dis-

and mob nominations.

orderly,

proceedings on Thursday

For

last,

instance, look at the

in the nineteenth ward

voters carried to the ballot-box in scores of waggons, from

and, in other wards, hundreds of

various localities

;

crats voting for

Scott or for Fillmore

steeped in crime

— picked up in

and purchased at a
low as

fifty cents, to

had never
ful

dollar a

;

and some,

it is said,

so

deposit in the ballot-box a vote they

This demoralising process

seen.

is

playing fear-

havoc with our institutions, rendering them, to a vast ex-

tent, not only a nullity,
to

the purlieus of the city,

all

head

demo-

—men ignorant and

but perverting them to mischief

bad and corrupt legislation

—and

The

of public justice.

tion

but what can they do

results;

to the mal-administra-

judicious

grieve

these

at

to arrest the progress of

the evil?
"

The

system

:

following

—A

is

a faithful and exact description of the

lazy fellow^

who

hates to work for a living,

and encouraged by the success of ward
have grown

fat

upon corruption and the

politicians,

who

spoils of office,

devotes his energies, day and night, to the acquisition of
influence in the ward in which

—he

brawls in the

of the highest order.

and " a clever

"

he resides.

He

spouts

bar-room, and affects public virtue

He

is

a patriot of the

fellow to boot.

He

first

water,

treats the rowdies

ELECTIONS.

ch. ix.J

and makes them his

whenever he meets them,

He

friends.

is

131

most diligent in attending

public interest connected with the ward or the city.

has sufficient

he draws up resolutions

ability,

fast

to all matters of

If he

for public

meetings and committees, and studies the forms and precedents of political organisations, so that he has them at his

and he

fingers' ends,

is

consulted as an oracle upon

casions of doubt or difficulty, or importance.

an honest man in the ward
any

taste or

shows any

ambition for public

talent,

and

character,

same

of the

affairs,

him

and especially

he

For the simple and the

confiding, he promises to obtain situations in

the

if

to blast his

a traitor, an intriguer, a dema-

gogue, or some other hard name.

Office,

who has

politics,

he takes every opportunity

calls

all oc-

If there is

Custom House, and the

Police.

the

Post

He

thus

gradually acquires the influence he seeks, and soon finds

himself a far more important
neighbour,

who

His position

is

is

a

man

man

of real

in the ward than his

worth and respectability.

found out by those who want to use him.

He

is

own

party by treachery, or to procure a nomination for any

for sale to the highest bidder, either to defeat his

scoundrel
kind.

who

He

will

pay for

has rascality to

are willing to purchase
it,

and

sell it

instance,

it

it.

He

sell,

has no politics of any

and there are those who

in order that they

may

themselves again, at a very high

traffic

profit.

in

For

the agents of Fillmore, or Scott, or Webster,

come, to one of these ward politicians, and they
contract with

him

to secure the majority

make a

of the ward.

Sometimes he succeeds completely, and sometimes only
partially, as there are other politicians as

mercenary as himself, who manage

cunning and as

to get their

names on

ELECTIONS.

132

[ch. ix.

the ticket, and, acting independently of him, must have
their price, whatever

can turn the

it

is,

particularly if they find they

and hold the destiny of the ward or

scale,

Hence

district in their hand.

is

it

when the

that

public

imagine that a ward has gone for a particular candidate

gone for Fillmore, or Scott, or Webster

—they

are asto-

nished to find that they were deceived, when the

and

sult is declared,

final re-

it

turns out to be the very reverse of

what they had anticipated.

The agents

of the candidates

see the purchasable delegates between the time of their

and the time that they

election

or during tbat time

elect the district delegate,

perhaps in the interval of taking a

recess to " get a drink," or while leaving the

other emergency

comes out

and the matter

is

made

room on some

" all right,"

and

to their satisfaction in the end, notwithstanding

protracted ballotings, adjournments, and deceitful appear-

ances of obstinacy.
"

Nor

chased

is it

— the

always with

money that

promise of a

fat

the delegates are pur-

office

But

equally potent and magic effect.

has sometimes an

it is

most frequently

with money that the operations are transacted, on the
principle that

'

a bird in the

bush,' or that the

men

hand

for sale

is

worth two in the

have no faith in the pro-

mises or the success of the purchasing party.
of

money thus given

are incredible.

We

The sums

have heard of

a case in one of the lower wards of the city, in which one

man

got, at the

ventions, the
of which

time of the late democratic district con-

enormous sum of two thousand

dollars, out

he said he bribed a majority of the delegates in

the district, and kept the balance for himself.
"

The dangers

to

which this system may lead are appall-

ing to every true patriot
siders its tendency

"

We

who calmly and

and possible

realised, but there is peril

show that

it is

;

and the

to lift his voice

"

In the

it

all his

Every

to bribe.

which were ce-

influence against this

where only

it

in its first inception, in

What

elections.

with which

of our revolutionary ancestors,

and use

system, and strike at

men

republican institutions,

of these

effectually

facility

not impossible on a larger scale, and

mented by the best blood
ought

*

*

practised in the ward and district nomina-

is

where there would be actually fewer
friend

attentively con-

*

results.

do not say that any of these cases will ever be

corruption
tions,

133

ELECTIONS.

ch. ix.]

can

be wounded

the ward

primary

are the remedies ?

first place,

honest

men ought

to attend

the

primary elections, and not leave them in the hands of
rowdies and scheming politicians
to

vote for the best men.

ought

to

be

;

and they ought always

In the second

place,

there

a registration established, by which no

man

could sail under false colours, or deposit a vote at a primary
election, unless

he belonged to the ward, and belonged

the party to which he professed to belong;

spectors

cases
it

the

of

administer

election

an oath

ought to

to every voter,

and the

have the power

to
in-

to

and perjury in such

ought to be made as much a criminal offence as

would be in any legal proceeding.

If this cannot be

done, or, being done, does not check the

one remedy remaining, and that

is

evil,

there

is

but

the stump nominations,

or self-nominations, that prevail in the South and West.

The primary

elections, as carried

the North generally,

may be

on

in this city,

and in

for the convenience of party

134
and

ELECTIONS.

but they are unknown

for the interest of politicians,

to the Constitution;

[ch.ix.

and when they threaten

to subvert

the very design of that Constitution, and to nullify our

most cherished
to

or

take

them out

pullers into their

come

at last.

and so

mob on

its original

it

and

;

and

to this

to abolish

of the

complexion

wireif

will

it

political system, so beauti-

guard against

adapted to

so well

hand, and the licentiousness of

one

the other,

either

hands

They have the power,

Meantime, our

free,

despotism on the
the

the

of

own hands.

they will only exert

ful

high time for the people

whether they ought not

consider

them,

institutions, it is

is

so abused

design, as to

and

so perverted

become the source

from

of public de-

moralisation, the reproach of the United States,

and the

laughing-stock of the enemies of republican institutions
all

over the world."

It

appears then, from the ahove, that one of

the principal remedies against corruption, in a
State whose

revised

1845—6 no-

statutes of

minally enact the secret ballot,

is

now

consi-

dered to be open voting!

Neither can
scription

it

applies

be said that the above deto

New York

only.

It

is

expressly stated in the above extract (p. 133),
that the

same system

is

carried on "in the

North generally;" an assertion which,

as

a

ELECTIONS.

ch. ix.]

135

general proposition, no one acquainted with

may

the subject will dispute, although there

be

localities

The

which are exceptions.*
of

stain

that

which has been proved
smaller boroughs will,

corruption

disgraceful
to exist in
it is

many

of our

be hoped, very

to

soon be wiped from our constitutional system

by the removal of some of the baser elements,

and the addition
that

to the constituencies of

may be purer and

we have been

better,

sufficiently

and

for

warned not

some
which

(for the

present, at least,) to look lower in the social
scale.

We may thus hope to continue

to attain

the great end of an elective system, namely, the
finding the best

The

men

to

govern the country.

almost equally disgraceful practice of

intimidation, once largely resorted to in the

much given way

counties, has so

before the

increased enlightenment and independence of
*

It is said that a

beginning has been made in some electoral

districts in the State of

of

managing the

may become

New York to break

elections.

general,

through this system

It is heartily to

be wished that

it

and that independence, property, high-

mindedness, honour, cultivation, wisdom, and moral worth, will

henceforward have more weight in the

numbers

or those

who use them.

scale, as against

mere

ELECTIONS.

136

[ch. ix.

the constituencies, that, as a general rule, they

have no longer any need

to raise the timid cry

for the shelter of the "ballot.

public reprobation
to the

The

stigma of

rapidly putting an end

is

few lingering attempts at that species of

oppression.

The

only other points relative to the Houses

which

of the Legislature of the United States

Mr. Justice Story touches upon, and which
a passing notice, are, that the time

require

of their assembling

Monday
that,

in

December

according to the

of the

first

pears

that

in

fifth

every year

and sixth

;

first

and

sections

article of the Constitution, it ap-

the

privileges of each

particulars

appointed for the

is

powers,

rights,

House are

different

in

duties,

and

no important

from those of our own

Houses of Parliament.

PAYMENT OF MEMBEES.

ch. x.]

CHAPTER

137

X.

PAYMENT OF MEMBEES.

The

section of the first article of the

sixth

provides

Constitution

and Representatives

"

that

The

shall receive a

Senators

compen-

sation for their services, to be ascertained
law,

and paid out of the United

States'

by

Trea-

sury."

The arguments urged
ducing

this

practice of

a

Member

referred

clause,

England
of

at the

;

the

ancient

known

case of

to

the last

Parliament

time of intro-

having

received

" wages " from his constituents being that of

Andrew Marvell, M.P.

for

Hull, in the

Parliament after the Restoration.
Story also recapitulates

which seemed

to

justify

the

Mr.

various

first

Justice

reasons

the introduction of

PAYMENT OF MEMBERS.

138

[cm

x.

the practice into the Legislature of the United
States

;

but the inclination of his own opinion

evidently

that the highest dignity, indepen-

is

dence, and ability in the discharge of legisla-

can be more certainly obtained

tive functions

without pecuniary compensation than by means
of

adverts to the fact that " the prac-

He

it.

tice of

England abundantly showed

pensation
public

was

life

not necessary

bring into

the best talents and virtues of the

And

nation."*

to

com-

that

may have been

whatever

the

presumed necessity or policy of such a practice

in

the

infancy

the United States,

the

of

when

more

an

honourable

restricted

means

independence

—(although

of

was

their population

comparatively scanty, and the
quiring

institutions

of

ac-

much

the numbers pos-

sessing the opportunities of high mental culti-

vation

were, even then, not few)

considerations cannot
nation,

now apply


to

the

same

an adult

teeming with wealth and overflowing

with intelligence;

and

it

appears to be not

improbable, from the current of public discus* §§ 853. 855.

ch.

PAYMENT OF MEMBERS.

x]

sion

upon

this,

disagreeable

139

by far the most delicate and

subject

whole range of

touch

to

their

upon in the
that

institutions,

the

dissatisfaction openly expressed at the details,
if

not yet very openly directed

principles
particular,

many

present

of their

are

scale of

payment

to

of September, 1789?

force to

this

im-

it.

members has un-

By an Act

dergone various alterations.

22nd

in

some

produce

passed,

portant modifications of

The

practice

gather strength, and, before

will

years

the

against

which continued in

March, 1795, the payment was,

both senators and representatives,
per working day,

*.

e.

of

to

six dollars

during their actual

at-

tendance on their legislative duties, and six
dollars

for

every

twenty miles

travelled

to

and from the place of the meeting of Congress.

In 1795 the payment

raised to seven dollars

was again fixed

March, 1816,

it

at

;

in

to senators

March, 1796,

six dollars for both.

was enacted

the daily compensation

was

that,

it

In

"instead of

now allowed by

law,

there shall be paid annually to the senators,

PAYMENT OF MEMBERS.

140

and delegates from

representatives,

to the President of the Senate,

and

to

the Speaker of the

sentatives,

member

3000

of the

delegate,

1500

dollars

House

to

territories,

pro tempore,

House

and

;

[ch. x.

of Repre-

each senator,

of Representatives,

and

This Act was

re-

dollars."

pealed on the 9th of February, 1817-

now

fixed,

It is

by the Act of the 22nd of January,

1821, at eight dollars a day to both senators

and representatives, and eight
twenty miles travelled
of the Senate,

;

and

dollars for every
to

pro tempore,

the President

(in case of there

being no Vice-President of the Republic, who
is

ex

officio

lars a

A

President of the Senate,) eight dol-

day additional.

proposition was last year brought before

the Senate, by one of
the

per

mode

its

committees, to change

of compensation from eight dollars

working day

to

2000

dollars

per year,

without reference to the number of days that
a

member might be engaged

in his legislative

duties.

This, no doubt, would be a more dignified

manner of assigning the

stipend,

and would

PAYMENT OF MEMBERS.

CH.x.]

relieve

members

Houses from the im-

of both

upon them by

continually heaped

putations

the public press,

141

that they wilfully prolong

business for the sake of adding to the
of days for which they

may claim

number

their salaries.

But the yearly amount proposed by

that com-

mittee did not satisfy public opinion " out of
doors."

was urged that the annual pay-

It

ments ought

to be, for the President,

dollars a year (instead of

sent)

of

25,000 as

50,000
at pre-

each cabinet minister 10,000 (instead

;

6000)

member
5000.

each senator,

;

of

as

House

now

that,

existed of

and each

;

Representatives,

of

was argued

It

means

the

6000

with

making

so

many

fortunes,

by

the application of ordinary talents and industry
in any one of the various careers of

not to be expected that
fications

men

life, it

was

of the first quali-

would give themselves

to the service

of the republic for eight dollars per working

day

;

that at the present rate of living,

considering

member
where,

the

unavoidable expenses of

of Congress at

it

and

Washington and

a

else-

was not probable that members in

general would be satisfied with that sum.

1

PAYMENT OF MEMBERS.

42

Hence

it

has arisen— and

it is

[oh. x.

a matter too

make any

notorious in the United States to
reluctance necessary in referring to

it

here

that accusations without stint or measure are

launched against a considerable proportion of
the

members

Houses of Congress,

of both

make up such

the effect that, in order to

comes as

will enable

them

to live in the

to
in-

man-

ner they think requisite, they accept money

payments from persons interested in questions
before the Legislature, to give their especial
attention to such questions.
It is

tives

not necessary to impute corrupt mo-

to the

selves to

members who thus allow them-

become paid agents

tion of claims, or the

for the prosecu-

advancement of measures

upon which they have

also to decide in their

deliberative capacity, in order to

completely their conduct

is

show how

a descent from the

high position which the theory of their Constitution

and the expectations of

claimed for
the

first

it.

That

principles of a

deliberative body,

comment.

it is

is

its

framers

a departure from

representative

and

too obvious to need any

PAYMENT OF MEMBEES.

ch. x.]

Neither,

if

corrupt motives are very freely

imputed in the United States
(as

is

143

to

such members

the well-known fact), do I desire to use

that fact for the purpose of invidiously contrasting

own

it

with the general character of our

Legislature. Unhappily, the history of our

railway legislation has

left

which we should be glad

stigmas behind

And

to forget.

it

the

circumstance that there always have been constituencies not very particular as to the
qualities or the

moral

independence of the candi-

dates of their choice,

sufficient to

is

account

for the degree of corruption that, in one

or another,

Commons.

is

not

A

unknown

marked

in the

distinction,

form

House

of

however,

between our system and that of the United
States

must not be

forgotten,

namely, that

under their Constitution the frequency of
tions, the

elec-

very great diffusion of the franchise,

and the payment of their members of both
Houses, cause a class of

men

to

be sent

the National Legislature, the majority of

whom

are not possessed of independent means
cient to enable

them

to dispense with

to

suffi-

those

PAYMENT OF MEMBERS.

144

[ch. x.

extraneous and unrecognised sources of emo-

lument which are inconsistent with their

and

tion

of either

posi-

character,

should a low estimate

happen

second the temptation

to

;

whereas, under ours, the vast preponderance

among* the members of the House of Com-

mons

of

men

of either hereditary or acquired

wealth, or of competence honourably achieved

and maintained, materially contributes

and preserve

fuse

high

a

tone

of

to dif-

feeling

and of principle, which reduces the corrupt
elements

exceptions

to

;

which

the watch against their increase
despises

times

use

and

repels,

be obliged by

And

them.

as

though

;

ever

on

and which

may

it

political

regards

is

some-

necessities

to

House

of

the

Lords, seldom indeed does even the voice of
slander assail the honesty and independence of

any one of

its

members.

The extreme

rarity

—even during the moral contagion of the
any instances
which memway mania—
rail-

of

bers of that

in

House were known

to

have made

a discreditable use of their position for their

own

private

advantage, was a proof of the

PAYMENT OF MEMBERS.

ch. x.]

145

general soundness of a body whose

soul

is

honour.

my

might, from the materials in

I

bring forward

sion,

and

many

posses-

facts in illustration

in proof, if need were, of the habit

members

of Congress of receiving

among

money

for

the transaction of business before the House,

and

for

their

measures.

which

support in

I will confine

mvself to one or two,

sufficiently describe

I will add an

upon the

The

Act

favour of certain

the process

;

and

of Congress lately passed

subject.

following

is

an extract from a speech

of Colonel Benton, an active

member

of the

democratic party, and a personal friend of the
present President, delivered just previously to
the late presidential election.

Colonel Benton,

speaking of several measures which had been
passed by Congress, of which he disapproved,
said
"

:

The

root of all this vicious legislation,

brium of our government,

up

at

is

and the oppro-

a new power which has grown

Washington, and which performs

pretty

much

tions

perform for elections, that

for

legislation

the same favour which caucuses and convenis,

takes

it

out of the

H

PAYMENT OF MEMBERS.

146

[ch. x.

hands of the people's representatives, and puts

of agents,

now

it

into the

These are the

hands of self-constituted managers.

class

multiplied to scores, and organised into a

body, and supplied with all the means of conciliating

These guard the

or combining interests.

bers

and create

legislation,

interests

mem-

halls of

strong enough to carry

through bad measures, and to embargo the good, unless
they consent to lend a helping hand to the bad.

way now

told the

any large

to get

is

to apply to

man (members

one of these agents as the

rail-

effective

him, and, like a good grand-juryman,

dary), arrange with

The

fellow's counsel.

log rolling'* then begins,

'

am

of Congress being considered quite secon-

keep your own and your
of

I

through Congress

even for a just grant of

for a claim, or a contract, or

road land,

bill

and a mass

great

game

of conglomerated

alone.

easily, many of which could get no support
To lend a hand at a pinching vote to get out of

the way

at a pinching vote,

measures pass

mollified

members,

and

now becomes

negative

votes

the duty of the
absent,

answer the purpose as well as positive ones present.

often

*

*

It was the view of such proceedings as these which in-

duced the representative from North Carolina (Mr. Venables) to say in a speech at Kichmond, Virginia, that
'

with

money enough any

bill

might be carried through

Congress.'"

Thus much
fact.

for the general notoriety of the

It is necessary to justify

such accusations

by a particular instance.
* " Log-rolling," means,
you

in yours."

"

Help

me

in

my job, and I will help

—Notes on Public Subjects,

p. 123.

PAYMENT OF MEMBEES.

ch. x.]

About

Gardiner

ago a Dr.

years

three

147

brought forward before a committee of Conclaims to a large amount against the

gress

United States Treasury, which were allowed.
on investigation before

It afterwards appeared,

a special committee of the House of Representatives,

of which

chairman,

that

this

Mr. Preston King was
testimony

was

forged.

Senator Corwin was stated to have prosecuted
those claims until he

Treasury

and another Secretary, Mr. Craw-

;

was publicly accused of being impli-

ford,

cated

in

these

transactions.

the investigation
the

became Secretary of the

House

their report

of

The

result

of

w as, that the committee

of

7

Representatives

by a

Bill,

accompanied

which very soon

passed into a law, a copy of which,
all

after

to obviate

misapprehensions, I give entire in the

Ap-

pendix.

The New York Evening Post
4, 1853, thus describes this Act,

of

March

which passed

on the 26th of the preceding month

:

" It punishes with fine and imprisonment any officer of

H 2

PAYMENT OF MEMBERS.

148

[ch. x.

United States Government, or member of

the

branch of Congress, and

who

ploy,

shall

assist

persons in their

all

in

either

official

em-

the prosecution of any claim

against the Government, except in the discharge of their
*

official duties.

*

" It visits with like penalties, and also disqualifies for

holding any public

office,

any person who shall

any member of Congress, or

Government who

shall receive,

any description designed
*

action.

officer of the

give,

and

United States

any gratuity or favour of

to influence their votes or official

*

" While we profess our deep sense of the importance of
this law,

and the special obligations of the country

King, by

whom

tions

it

to

Mr.

was reported, and through whose exer-

and personal influence more than any other cause

it

was enacted, we cannot forbear expressing our mortification

and regret that the necessity

existed

;

that

it

for

any such legislation

has become necessary to threaten cabinet

ministers with the penitentiary to keep
lation,

to

and that members of Congress have been compelled

arm themselves with

the heaviest penalties of the law

against the temptations of their

"Our pen
ting,

them from pecu-

official position.

*

*

has never fashioned any satire half so cut-

nor any invective half so bitter as this law, by which

Congress deliberately declares that a necessity exists for
invoking the aid of the judiciary to protect the country

from the corrupt practices of

its

own members, and

of the

executive branch of the Government."

While the Act was,

in the shape of a Bill,


PAYMENT OF MEMBERS.

ch. x.]

149

under the consideration of the Senate, I find
in the report of the proceedings of that

hody

25th of January, 1853, that

for the

" Mr. Hale, of

New

Hampshire, inquired whether the

Bill covered the case of agents

daily exacting

'

who were

in the habit of

black mail from sailors and officers of the
'

navy, to get business done before the Department or Congress

these

?

He

men

a price, and
that

it lie

said that

it

had been shown under oath, that

were in the habit of daily
if

'

selling

Congress for

'

the Bill did not cover such cases, he desired

over for amendment.

" Mr. Badger (who had charge of the Bill) said that
Bill did not cover
less

"

hoped that

The

it

of

the

what Mr. Hale desired, but he neverthewould be passed

for

what

Bill was then read a third time

The system,

'

it

did cover.'

and passed."

therefore, of bribery of

members

Congress through the instrumentality of

" agents," as described by Colonel Benton,
not only stigmatised, and sought
vented, by an

Act

to exist in cases

be pre-

of Congress, but admitted

not reached by that Act.

Whether the one or
admitted

to

is

to exist,

the other mode, thus

by which certain members

of Congress (and confessedly by no

means a

small proportion of them) add to the emolu-

ments assigned

to

them by law

as their daily

PAYMENT OF MEMBERS.

150
salary,

can be put an end

to

[ch. x.

by

may

well be doubted, inasmuch as

that

it is

legislation,
it is

plain

the direct result of a system, and not

an occasional and exceptional phenomenon belonging to the obliquity and the low estimate
of

what

rioht and dignified, of this or that

is

individual.

be sorry to conclude

I should, nevertheless,

this

passage

painful

working

United

the

of

the

in

history

States

of

the

Legislature

without pointing distinctly to the

fact,

that

public opinion in that country has no difficulty
in distinguishing

between those members who

lend themselves to these practices and those

who do not
known

men

;

inasmuch

as

to contain, as they

both Houses are

have ever contained,

as incapable of such practices as

any who

exist in the world.
I

might very

easily

accumulate proofs in

these pages of another fact, which the honest

and dispassionate portion of public opinion in
the United States admits

general quality of the
national Legislature

— namely,

members

falls far

that the

sent to the

short of the anti-

PAYMENT OF MEMBERS.

ch. x.]

cipations formed of

151

what would be the

result

of their constitutional system at the time of
its

formation.

One

communica-

extract will suffice, from a

tion addressed to a

and forwarded

most respectable journal,

me

to

by a gentleman in the

United States of the highest honour and character,

and of the most ample means of judg-

He

ing correctly.

accompanied

with

it

expression of regret that he believed

" every word

it

It is as follows, a

true."

to

an
be

few ex-

pressions being omitted which might give un-

necessary pain

:—

" Consider, for one

moment, the inevitable

The

present style of politics.
deteriorates

effects of

Write down a

most rapidly.*

our

quality of our politicians
list

of the

twenty-five leading politicians of Washington's, Adams', or
Jefferson's administration,

and write opposite the names of

our foremost twenty-five.

.

very foremost
ful

'

.

Have we not among our

.

statesmen,' illiterate, shallow, noisy, boast-

...

demagogues?

business of politics

by such persons

;

is

that

It

seems

to

getting to be done,

men

of worth, dignity,

more and more abstain from handling the
* The

me

Italics are in the original.

that

the

more and more,
and wisdom,

political pitch

See also note,

p. 167.

PAYMENT OF MEMBERS.

152
which

defiles

[ch. x.

that the apathy of the intelligent class, with

;

regard to politics, has become almost complete."

It is

with no feeling of satisfaction that I

record these and other facts and opinions re-

garding the deviations of the United States'

from the ideal formed of them by

institutions

What

their founders.

and have yet

whom

have already adduced,

to bring to notice,

and ample authority,

many

I

will, I

on competent

know, give pain

to

persons in that country, and to some for
I cherish the highest

But the

esteem and regard.

interests of truth, in reference to this

country, and especially to our colonies, require
that minor considerations should not be allowed
to interfere.

It

is

now

sixty-five years since

the United States, in adopting a new, and, as

she

thought,

embarked on

a better, form of government,
that unexplored sea

;

and no one

has, since 1834, essayed systematically to lay

down her

course,

and

to

on which she has drifted.
civilised

mark

It concerns

world to know how she

that voyage.

It

could not avoid

;

the currents

is

may have been one

the

faring on
that she

and the course she has taken

PAYMENT OF MEMBERS.

ch. x.]

mav have been the
ours, and we may be
But we have

too

153

best for her.

It is not

thankful that

many

it

not.

is

reasons to be justly

proud of our country, and grateful

for the

Providential guidance of centuries, which has

brought

it

to

what

it

is,

to

have any need

to

seek aliment for our pride from the miscalculations or disappointments of our neighbours.

I

do not quote any of those reports of

" scenes" in the Senate or

in

the

House

Representatives which are before me.
character

is sufficiently

mens which from time
into

our own papers,

known from

Their

the speci-

way

to time find their

They

of

are invariably

reprobated by the American press, with

all

the

force of language that a deep sense of the dis-

credit reflected by

them upon

Legislature can command.

their national

The

best portion

American press speaks of them

of the

in a

manner, showing how painfully they w ound
T

the feelings of every

man

honour in the community.
capable
either

of

such

House

of cultivation

The

language and

and

individuals

conduct in

of Congress are asserted to be

h 3

PAYMENT OF MEMBERS.

154
but few

and the outrage

;

[ch. x.

decency

to

marks

sented by the rest by the strongest
disapprobation.

two

Nevertheless,

affect the character of the legislative

well

as

that of individuals

the grossest and most
often repeated

and

by the parties

appears

the

suits

circum-

to

;

assembly

first,

that

insulting language

continue

pleasure of the

is

to the dispute, in

chairman

spite of all attempts of the
it,

of

them are conspicuous, and

stances regarding

as

re-

is

as

to stop

long as

disputants

it

next,

;

that these mutual insults sometimes terminate

without either the withdrawal of the offensive

language on either

explanation

at

or

side,

apology

rises without, as far as

;

or any attempt

and the House

appears by the public

reports, any adequate endeavour to assert its

own

dignity by insisting upon either one or

the other.

We
in

happily do not require,

this country,

it is

any warning as

to be

hoped,

to the

com-

position of our Legislature, or the conduct of

our

such

parliamentary
facts

debates,

deducible

from

and examples as those above ad-

PAYMENT OF MEMBERS.

ch. x.]

verted
pire

But there are portions

to.

where

it

is

155
of our em-

of the utmost importance to

their future well-being that these, as well as
ail

the other lessons to be gathered from the

experience of the working of the Constitution
of the United States from

origin

its

up

to the

present day, should be deeply considered and
laid to heart.

Our

colonies

are embarking, and some of

the finest and greatest of

them have embarked,

on the dignified and ennobling career of
government.

It

self-

must be the fervent aspiration

of every patriotic breast in this country that

they

may

act

their part well

may reproduce

in

and

wisely,

new and favoured

and

scenes,

and over vast extents of the earth's surface

compared with which

this small island is but

a speck, those moral and intellectual qualities

and that conduct which have made the name
of Great Britain honoured

But they must
Britain

as

among mankind.

follow in the paths of Great

closely

as

differences of circum-

stances will allow, if they would gather

up the

materials with which to form a moral, social,

PAYMENT OF MEMBERS.

156

and

political fabric,

and

features

will,

many

ages and of

and a

the energy of youth,

boldness,

its

shall correspond in

in strength to the one that has

stood the test of

With

which

to

elements of real wisdom.

share of

It

circumstances

permit, to those social

make

practicable at

the

ought never

which have formed the national

character, and which
stitution

the

by them, that without the

new country may

institutions

among

is

nearest approaches which the

things

full

trials.

they are wise in time, combine that

if

be forgotten

of a

many

and freedom, they

originality,

deference to experience which
first

[ch. x.

most

all,

difficult

the British Conwill

it

be of

all

to perpetuate that

national character, and to preserve the great

leading characteristics of that Constitution, in
the true and genuine liberty

it

moderation and justice which

secures, in the

it

enforces,

and

the high development of civilisation to which
it

leads.

New

South Wales has just adopted a con-

stitution

from which, with the modifications

which a due regard

to

the future

may

sug-

PAYMENT OP MEMBERS.

ch. x.]

may be

gest, the best results

has made

the most satisfactory progress in

under a constitution in

self-government,

ardently

is

very

respects

essential

sake,

The

expected.

and magnificent province of Canada

great

It

157

to

hoped,

be

may

she

that

similar

preserve

all

to

our

own.

for

her

own

There

it.

is

clearly nothing either in the theory or in the

working of the

practical

United

States,

to take

them

A

possesses.

the

institutions of

which should lead her

to

wish

in exchange for those she

now

little

sufficed to bring

more than

have

sixty years

about a wide departure from

the theory of the United States' Constitution
in

many important

particulars

and

;

it

is

pa-

tent to the world, that those departures have

lowered the
Legislature
spectable

estimate
in

the

citizens.

United States

of the

eyes

of

their

Canada

has

most

re-

laid

the

foundation of a constitutional system which

time will only strengthen and improve, not
impair,

if

she

popular element

enough

to

adheres
is,

satisfy

to

it.

While

the

or shortly will be, strong

the

most

ardent

advo-

PAYMENT OF MEMBERS.

158

cate of popular rights

rogative of the

Crown

great an extent as

[ch. x.

and

liberties, the pre-

is

represented to as

consistent with the cir-

is

cumstances of the country.

If there be any

value in the example and experience of England,

is

it

impossible

to

deny, that

it

has

been by the firm and judicious admixture and
blending of both those powers, that our country

and our

has attained to that true liberty,

Legislature to that character of dignity and
ability,

with which we have no reason to be

The

dissatisfied.

under

are,

its

entire freedom of action, being

now developed with
wealth
ratively

the

is

Canada

vast resources of

so

much

accumulating so

rapidity,

fast,

and

its

that a compa-

short period only will elapse before

number

position in

of persons enjoying a high social

much

the colony will be so

en-

larged, as to afford a wide circle of choice to

the

Crown

in constituting the

of Legislature.

There

persons who, by their
ence,

and their

to that

will

Upper House

be no

abilities, their

want of
independ-

cultivation, will give dignity

branch of the Legislature, while their

PAYMENT OF MEMBERS.

ch. x.]

connection with

all

159

the material interests of

the colony will prevent their being removed

beyond the reach of popular sympathies.
is

not too

much

It

to anticipate that such a body,

in a country so abounding in all the materials

of future greatness as Canada, would, before

many

years were passed, present, in conjunc-

and energy

tion with the ability, skill,

Lower House,

of the

the spectacle of a Legislature,

second only to our own in every quality that

can

command

the esteem, and contribute to

the self-respect and elevation of a people.
therefore after sixty, but haply after
six

hundred

the

Roman

years, her posterity

did of old, and as

Not

more than

may

say

as

we do now

" This framework has been knit together by
the fortune and discipline of eight hundred
years,

and cannot be torn asunder without the

destruction of those

There
of the

is

who would

destroy

it."

*

one other incident to the practice

payment of a salary

to

members

of the

* Octingentorum annorum fortuna disciplinaque compages
hsec coaluit,
potest.

quae

convelli,

Taciti Hist., Lib. iv.

sine
c.

74.

exitio

convellentiuni,

non

PAYMENT OF MEMBEKS.

160

[ch. x.

Legislature, as

shown by the example

United

which

not

States,

it

be overlooked in

is

of the

important should

Canada, namely,

unseemly disputes which are

liable

to

the
arise

between the two Houses on such questions as

whether or not certain members have sent in
charges for travelling expenses beyond what
they can legitimately
not

demand

members have attended

duties on days for
their accounts as

;

or whether or

to their legislative

which they have sent in

having done so

;

questions,

of which the least that can be said

is,

that

they lower the position of both Houses in the
eyes of the

country.

The

following

is

the

report of an occurrence in the Senate, taken

from the ordinary report of the proceedings of
Congress, published in the National Intelli-

gencer, Washington, July 21, 1852:

"IN SENATE,
"July

19, 1852,

" DEFICIENCY BILL.
" Mr.

Hunter moved

the disagreement of the

amendment

to take

House

up Deficiency

Bill,

with

of Kepresentatives to the

of the Senate, appropriating 20,000 dollars

for mileage, pay,

&c, of senators.

"

PAYMENT OP MEMBEKS.

ch. x.]

"

Mr. Hunter urged, among other arguments

House

the

it

this

money to he paid

was in the power of the Senate,

retaliate,

to induce

of Representatives to agree to rescind their

and allow

resolution,

that

161

to the senators,
if it

by causing the law to be enforced

'

pleased, to

which forbids

any member from receiving his pay except on those days
on which he
ceeded thus

:

actually in attendance.'

is

— We
'

know very

Mr. Hunter pro-

well that this rule

is

not

observed ; and suppose that with this knowledge we were
to

move

down the appropriation

to cut

the plea that

much

of

it

for their pay,

upon

was for time when they were

absent from duty, and therefore not entitled under the law,

would they not have cause
It will

to

complain of us

be strange, indeed,

if

?

'

Canada

after

sixty years of perseverance in her present constitution

after the continuance for that period

of the great increase in her wealth

and

being, of which she has every prospect
after as

many

pathies and
culture,

years'

habits,

growth

and

well-

—and

in all those

sym-

in that intellectual

which assimilate the best part of her

population so

much

to that of this country

should be called upon to contemplate in either
of her

Houses of Legislature a scene

so little

in accordance with the sense of propriety of

high-minded and independent men, as that
above recorded.

PAYMENT OF MEMBERS.

162

The

constituencies

Canada, in

[ch. x.

and representatives of

this early portion of their career of

self-government,

have a great responsibility

from circum-

If views derived

before them.

stances which, with the present great prospects
of that country,

must be but temporary, do not

prevail to alter the present foundations of her
Constitution, and approximate

it

more

to that

of the United States, there can be no reason-

able doubt that persons

the day,
will

when

now

living

may

the material greatness of

see

Canada

be only equalled by the moral dignity of

her Legislature, and the high example and re-

nown

of her statesmen in both

Houses of her

Provincial Parliament.
It is

somewhat singular that the very clause

in the Constitution of the United States,

was looked
as the

to

by

its

which

founders and defenders

most admirable security against venality

and undue influence,* should

in practice

have

proved the very one which experience has
* The 2nd

clause of the 6th section of Article 1

Blackstone, App. 198, 214, 215, 375
tion, chap. xix.

;

;

Tucker's

Rawle on the Constitu-


PAYMENT OF MEMBEBS.

ch. x.]

shown

By

to

have

facilitated

the section alluded to

and encouraged
it

is,

among

it.

other

"no person holding any

things, provided that
office

163

under the United States shall be a mem-

ber of either House of Congress during his
continuance in

Justice Storv remarks
"

The heads

On

office."

Mr.

this clause

:*

of departments are in fact thus precluded

from proposing or vindicating their own measures in the
face of the nation in the course of debate

pelled to entrust

them

to other

;

and are com-

men, who are either im-

perfectly acquainted with the measures, or are indifferent
to their success or failure.

responsibility for measures,

Thus, that open and public

which properly belongs

to the

executive in all governments, and especially in a republican

government, as

its

greatest security and strength,

pletely done away.
to

secret

The

executive

and unseen influence,

is

duties

its

to the executive

representatives.

own

to the

One consequence

that there never can be traced

is,

any responsibility for the measures

which are planned and carried at
consequence will be

and

appropriate

and measures by a bold and manly appeal

of this state of things

home

own

instead of proposing and sustaining its

nation in the face of

com-

to private interviews

private arrangements, to accomplish its

purposes;

is

compelled to resort

(if it

its

suggestion.

Another

has not yet been), that measures

*

§ 869.

PAYMENT OF MEMBERS,

164

[ch. x.

will

be adopted or defeated by private intrigues,

cal

combinations, irresponsible recommendations, by all

the blandishments of
of silent patronage.
to

avow or

and

office,

The

all

the deadening weight

executive will never be compelled

any opinions.

to support

Its ministers

conceal or evade any expression of their opinions.

seem

to follow,

Congress.

when

It will

politi-

in fact it directs,

assume the

air of a

may

It will

the opinions of

dependent instru-

ment, ready to adopt the acts of the legislature, when in
fact its spirit
legislation.

and

its

wishes pervade the whole system of

If corruption ever eats its

of this republic,

it

will

to bring responsibility

way

into the vitals

be because the people are unable

home

to the executive,

through

its

chosen ministers."

working of

It is notorious that the

tem was never more

this sys-

distinctly illustrated than

during the negotiations between Canada and
the United States at their
or three years ago.

was prepared

The

to enter

commencement two

Legislature of

Canada

upon a system of

ciprocal free-trade, to a certain extent

re-

and on

certain conditions, with the United States

;

and

the Canadian ministry accordingly laid their
propositions in
States

due course before the United

Government.

For the course of policy

indicated by those propositions the ministry of

Canada were

responsible,

and took upon them-

PAYMENT OF MEMBERS.

ch. x.]

them through the Canadian

selves to carry

This they both could and would

Parliament.

have done

165

or in the improbable alternative

;

of not being supported in their policy by the

they would have resigned their

Legislature,

and given way

offices,

commanding

at

once to the party

the legislative

Thus

majority.

the will of the Legislature would have been

upon

acted

and

tination,

But

as

way,

either

there

in

the

open

neither

is

without

in

procras-

face

the

of

day.

president,

nor in the Legislature, nor in the ministers
of the president at Washington, that direct

and open

responsibility for the policy of the

Government,
brought

negotiations

to the point at

be taken.

Canada

the

The

could

not be

which a decision could

impatience of the public in

at the delays that ensued, obliged the

ministry to take a course of their own, and to

bring forward measures in the provincial Parliament of such a nature as alone could force

on a decision on the part of the Government
of the United States.

The

questions are

still

PAYMENT OF MEMBERS.

166

[ch. x.

under discussion, having passed, together with
other

points

referring

North American
into the

Mr.

the whole of the

to

from the Canadian

colonies,

hands of the imperial ministry.

Justice Story agrees* that " one other

reason in favour of allowing the heads of de-

partments seats in the Legislature

would compel the executive
ments

to

is,

make

that

it

appoint-

high departments of Govern-

for the

ment, not from personal or party favourites,
but from statesmen of high public character,
talents,

experience,

and elevated services

from statesmen who

command

vour, and could

But these were

had earned public

public confidence."

just the reasons

lousy of high distinction, so
republics,

excluded such

the Legislature.f
their

history,

authority

And

why

to

his

the jea-

conspicuous in

men from

seats

great name,

all

the

his

un-

bounded learning, and calm judgment.
*

§ 870.

in

of this circumstance in

Niebuhr speaks with

due

fa-

f

§ 869.

At

PAYMENT OF MEMBERS.

ch. x.]

vol.

iii.

p.

118,

67

"Life and Letters,"

of his

(London, 1853), he says:
of the public servants,

1

and

"The

segregation

their exclusion from

the Legislature, was the highest pitch of revolutionary madness."
[In reference to the passage quoted in page 151,

be well

mark

to

in 1834.

He

states, in vol.

" II est evident que la race des
s'est

it

may

add that M. De Tocqueville made the same reii.

hommes

ch. 5, of his work,

d'Etat Americains

singulierement rapetissee depuis un demi siecle."

He

attributes

it (ch.

7)

"to the ever-increasing action of

the despotism of the majority."]

THE PKESIDENT'S NEGATIVE.

168

[oh. xi.

CHAPTER XL
THE PRESIDENT'S NEGATIVE.*
It

is

a remarkable fact that the power and

influence of the President of the United States

upon the ordinary course of

legislation, is far

greater than can by any possibility be exercised

by the Crown

in this country.

Although, by the Constitution, the President's negative

is

only of a suspensive cha-

racter, in point of fact

it

has been exercised

with success, on important public measures,
eleven times in sixty years, by four different
Presidents.
* Article

1, sec. 7,

clauses

2, 3.

I omit a question previously

touched upon by Mr. Justice Story
alter
rests

money
upon

bills.

different

The

—the right of the Senate

to

constitutional practice of that country

grounds from our own, and

is

so settled in

both countries, that no practical object would be answered by
the discussion.

THE PRESIDENT'S NEGATIVE.

ch. xi.]

Mr.

169

Justice Story admits* that the evils to

be apprehended from a legislative body conthat of the United States, are

stituted as is

may

those which

from temporary excite-

arise

ments, from precipitancy, from political hostility,

from

lation

;

and unconstitutional

faction,

legis-

and he says that the negative of the

President

is

an important power, as an addi-

tional security against the enactment of rash,

The

immature, and improper laws.
of proceeding, as laid

down by

the

first article

of the Constitution (sec. 7, clause 3),
effect that if

sident to

bill

are approved

thirds of both Houses, the

By

by the President,
both

is to

the

any objections made by the Pre-

any

comes law.

course

Houses,

it

amended

clause 3, if a
is

by two-

of

bill,

bill

be-

negatived

repassed by two-thirds of

becomes law,

being thus overruled.

the

negative

" Right or wrong, he

can be overruled by a vote of two-thirds of

each House.

If his objections be

overruled, the subject
is

is

not

referred to the States and the people."t
*

§ 885.

thus

only postponed, and

f President Polk's Message of 1848.
I

THE PRESIDENT'S NEGATIVE.

170

[ch. xi.

President Washington on one occasion exercised

constitutional

this

power.

Jackson, in 1880, vetoed a
the funds of the

and

in

Union

1832 placed

for applying

bill

to local

his

President

improvements

veto on

a

bill

;

for

renewing the Charter of the United States

Bank.

In 1841 President Tyler twice exer-

cised his veto against bills for establishing a

national bank

and in 1842 he three times

;

exercised this power (twice
altering the tariff).

against bills for

Four of these instances

occurred within fifteen months, and against
the advice of his Ministry.

They were followed

by an angry remonstrance from the Senate, and
a protest on his part against that remonstrance.
President Polk states in his last message (1848)
that he

had exercised

He justifies

the use he

tional power,

"There

is

and adds,

made

of this constitu-

that, in his opinion,

more danger that the President, from the

repugnance he must always
Congress,

three times.

his veto

may

fail

feel to

come

in collision with

to exercise it in cases

where the pre-

servation of the Constitution from infraction, or the public

good,

may demand

sarily

and wantonly."

it,

than that he will exercise

it

unneces-

THE PRESIDENT'S NEGATIVE.

ch. xi.]

Considering

patronage

vast

the

171
the

in

hands of the President, which Mr. Justice
Story adverts to as having " some tendency to
create a counteracting influence in aid of his

independence * (an assertion which he cer-

need not have qualified by the word

tainly

"some"), and considering

also

payment of members and

of the

been shown
plaints at

to involve,

its

the principle
all

that

including the

inadequate amount,

it

is

it

has

comabun-

dantly clear that, in the ordinary course of
things, the exercise of that patronage enables

the President to cause the essential measures

Government

of the

and permits him

may

to

to pass

through Congress,

mould or defer others which

not be in accordance with his views of

policy.

Thus he

is

course of his policy

though the general

able,

may be disapproved

of by

both Houses of Legislature, to pass the supplies,

and

to wield for the

term of his

whole power of the Government.
the case with President

variance with

Tyler,

the Senate during
*

office

the

This was

who was

at

nearly the

§ 882.
I

2

THE PKESIDENT'S NEGATIVE.

172

[ch. xi.

And

whole course of his administration,
latest

the

and most notorious instance has only

ceased with the last presidential election

;

the

former President and his Ministry having been
of the "

Whig"

and yet having suc-

party,

ceeded in carrying on the government for four
years

the

in

face of a democratic majority

against them, both in the
tives

House of Representa-

The

and in the Senate.

President

is

also

generally able to soften, or modify, or finally to

suppress altogether,

bills that

may be

adverse

to his course of policy, or, in his opinion, precipitate,

unwise, or dangerous,

may never be brought
shape

as to call

before

upon him,

so

that they

him

in such a

in obedience to his

sense of public duty, to exercise his negative

upon them.

But the

President's

negative

would

be

of no avail should public opinion be roused

upon
oblige

any point

such

to

two-thirds

gress to take part

of

both

a

degree

as

to

Houses of Con-

against him.

Patronage

and influence would then be alike overborne,
and possibly

at the very

moment, and on the

THE PKESIDENT'S NEGATIVE.

ch. xi.]

very questions,

when

the general and

country

the

regard for

truest

permanent

173

interests

of

the

would have required that a check

should be placed upon the popular feeling of
the moment.

Then would be

seen that weak-

ness in the Executive of the United States

which M.

De

Tocqueville has commented upon

in reference to this as well as other portions of

and which reduces

his ministerial character,

him, in times of excitement, to the position of

"a mere agent of
The President

the popular will."*
of the United States com-

bines in himself the two functions which be-

long in this country to the

Prime Minister.

Crown and

In the exercise of the latter

function he can, as has been seen,

the

Government

to the

for a

term of four years ac-

cording to a policy which
the majority of both

carry on

is

disapproved of by

Houses of Legislature,

and in every step of which they would be
compelled to oppose him
their convictions
ciples.

if

they acted upon

and their acknowledged prin-

In the exercise of his higher function,
* De

la

Democratic en Amerique,

vol.

i.

ch. 8.

THE PRESIDENT'S NEGATIVE.

174

as the Executive of the State,

he

is

[ch. xi.

armed with

patronage, which, in ordinary cases,

him
to

enables

so to regulate the course of legislation as

prevent the necessity of his having recourse

power of negativing the measures of a

to his

which power

hostile Legislature, but

him

to fail

there

is

On

at

moments, when,

the most need to use

is

liable

in his opinion,

it.

a comparison of the two systems, even

from the point of view most in accordance
with
that

popular sympathies,

we have any reason

own.

It is too

cannot be said

it

to

complain of our

obvious for remark, that no

minister in this country can, under ordinary

circumstances, retain office an hour after he

has ceased to be supported by the majority of
the

House

of

Commons.

the hands of the

enable

him

to

The

Government

patronage in
too small to

is

do more (and then only at a

time when parties should happen to be nicely
balanced) than delay his
if at all,

He

upon the broad basis of

acknowledged
to

fall.

policy,

and when

be in unison with

the

must stand,

his

open and

this

opinion

ceases
of

the

THE PKESIDENT'S NEGATIVE.

ch. xi.]

House
give

Commons and

of

way

some one

to

175

the country, he must

That opinion may

else.

be somewhat more slow in forming and declaring

than the public opinion as

itself,

presented in
States

only

more

reflect

the

is

it

more anxious

dom

to

of the community,

And when

the United

the Legislature of

but

;

that opinion

seldom indeed that

it

slow because

matured

and not

is

its

not

wis-

impulses.

once declared,

is

re-

it is

Against

final.

any measure brought forward by a minister so
supported, and upon the responsibility of the

Government

of

the

the

day,

Crown would

never venture, except in some very extreme
case,

to interpose its negative.

would be
which

it

by no

now

exercise

of

If

it

did,

it

" patronage,"

possesses in so scanty a measure

as to be almost inappreciable in reference to

public

afFairs

;

it

" influence," which

would be by no indirect
it

has no means of bring-

ing to bear upon the course of legislation, that
it

would seek

to

support

itself.

by an appeal, which the act would

It

would be

indicate, to

the intelligence and the justice of the nation,

1

THE PRESIDENT'S NEGATIVE.

76

which appeal would be

all

the

[ch. xr.

more impres-

and solemn because resting on no other

sive

ground than that of high constitutional

may be

It

ciple.

the

of

sense

anticipated that the good

nation

may prevent such an

The

appeal from being ever necessary.

Crown

stitutional negative of the
to use the

which

is

a power,

is

Its repose

wisely forborne.

may be

tion itself,

con-

words of Burke, " the exercise of

the preservation of

ence

prin-

the

its

means

existence,

and

may be
its exist-

of saving the Constitu-

on an occasion worthy of bringing

forth."*

it

* Letter

John

to the Sheriffs of Bristol, a.d. 1777.

Adams,

afterwards

the

second President

Republic, in his great work above quoted (vol.
presses his "mortification" that the negative

i.

of

p. 70),

the
ex-

power of the

Executive was imperfect, and the constitutional balance therefore " incomplete."

[President Polk, in his message of 1848, states that Washing-

ton once exercised his veto, and that six Presidents have done
so.

I

have been unable to ascertain

all

the occasions.]

THE PKESIDENT'S MESSAGE.

ch. xil]

177

CHAPTER XIL
THE PEES1DEWS MESSAGE.

We

are

familiar

in

this

country

with the

lengthy document presented to both Houses of

Congress by the
States, at

President

of

the opening of every

the

United

new

Session.

This document, called the President's "message," contains,
sition

of the

among

other matters, an expo-

opinions and intentions of the

President and his ministry, in regard to the
principal public questions of the day.
It

might naturally, therefore, be expected,

that this message would be immediately taken
into consideration by each
first,

that a respectful

House, in order,

acknowledgment might

be given to the head of the State for his communication,

and next, that an opportunity

might be afforded

for

expressing at once,
I

3

if

THE PRESIDENT'S MESSAGE.

178

[ch. xil

need were, the concurrence or disapproval of

House

either

in the general course of policy

indicated by the message.

And

well arise in that country, as

it

may

very

occasionally

it

does in this, that the interests of the public

may

an

require

immediate

expression

of

opinion on the part of the Legislature, as to

whether

will

it

support or oppose the policy of

the ministry.

But

to the President's

message no answer

is

returned, and no discussion takes place upon
it.

Under the two

first

Presidents of the Re-

public the practice was otherwise

same

in fact, the

as our own.

;

and was,

Mr.

Justice

Story thus describes the change, and records
his opinion that

it

has not been for the public

advantage.

"Under

President Washington

Adams, the

Jefferson discontinued this course,

sages

;

lowed.

make

and
.

.

and President John

practice was to deliver speeches.

this practice
.

When

a speech,

it

President

and substituted mes-

has been since invariably

fol-

the habit was for the President to

was in the presence of both Houses,

and a written answer was prepared

by each

House,

THE PRESIDENT'S MESSAGE.

ch. xil]

when

which,

At

was presented by a committee.

accepted,

no answer whatever

present,

tents of the message.

has been thought by

And
many

this

given to the

is

statesmen to be a change

House enabled

each party in the Legislature to express

way

of

more

amendment

correct

and

speech,

the matters in the

to

con-

change of proceeding

for the worse, since the answer of each

as

179

to the answer,

its

to

own views
by

propose,

whatever was deemed

and more expressive of the public sentiment

The consequence

than was contained in either.

was, that

the whole policy and conduct of the administration came

under solemn review

;

and

it

was animadverted on, or

de-

fended, with equal zeal and independence, according to

the different views of the speakers in the debate

showed the exact

final vote

leading measures.

is

completely taken away

intervals, as

which

result

it

is,

debates,

on

all

the present practice of messages,

;

de-

and the attack or defence
renewed

of the administration is perpetually

to

and the

and concentrated opportunity of attack or

this facile

fence

By

;

state of public opinion

an incidental topic in

all

at distant

other discussions,

often bears very slight or no relation.

The

that a great deal of time is lost in collateral

and that the administration

itself in detail,

is

driven to defend

on every leading motion and measure of

the session."*

It is

change

probably not
of

difficult to

practice,

account for the

although

Mr. Justice

Story passes from the subject without further
*

§ 895.

THE PKESIDENT'S MESSAGE.

180

comment.

The

fact

of either

House

of

is,

[ch. xir.

that no " final vote

Legislature

upon

"the

policy and conduct of the administration," to

which Mr. Justice Story
any necessary
to

effect in

change that

policy.

refers,

would have

compelling the President
It

might bring out very

glaringly to public notice the circumstance,
that the Legislature and the President were at

variance upon the general policy of his govern-

ment

;

but

it

would not oblige him

to dismiss

his ministry, or to vary his policy in

particular.

The

any one

" patronage " in the hands of

the President, and his " influence," would most

probably enable
affairs

of

him

to carry

on the ordinary

of government during his four years

All his favourite measures might,

office.

indeed, be rejected, but at the same time his

" influence" might be sufficient to prevent measures, adverse to his policy,

The

him.

and

late

Whig

his ministry,

duties.

President,

Mr. Filmore,

were in favour of Protective

They were

policy into effect

being forced upon

;

not able to carry their

but during four years they

prevented the contrary policy, which was that

THE PRESIDENT'S MESSAGE.

ch. xn.]

181

of the majority of both Houses of Congress,

from being extended.

Congress dissented from

the policy of President Tyler, and rejected his

measures

;

but he found the means of car-

rying on his government, in
opposition

to

general

his

spite of

We

policy.

therefore, in this silent reception of the

their
see,

Mes-

sage, another illustration of the fact that, under

a democratic Government, the head of the
State, wielding the

powers of that Government,

can for a period of

and

effectually resist

expressed in

Supposing

it

its

four

years

counteract

the popular opinion as

two Houses of Legislature.

possible,

which

it

is

not, that a

parallel case should exist in this country, the

ministry of the Earl of

mained

Derby would have

re-

in office until the 27th of February,

1856, and the question of protection would

have been

still

agitating the public

mind

in

England.

A

common, though

superficial,

upon the speeches delivered

at the

criticism

opening of

each session of Parliament by the Crown, on

THE PRESIDENT'S MESSAGE.

182

the responsibility of the ministry,

is,

[oh. xii.

that they

are too short and too indefinite.
If they are

sufficiently definite

to

convey

the announcement of the general principles of
the ministerial policy, and of the measures

it

purposes submitting to the Legislature, they

convey

all

that

House,

if it

require

it,

is

required to enable either

considers that the public interests

at once to declare itself hostile to or

disposed towards that policy.

Crown

to details in

To commit

the

any such announcement

is

obviously undesirable, inasmuch as the details

belong more particularly to the

of measures

whom these measures
considered.
And it is equally

deliberative bodies by
will

be

fully

obvious that the ministerial exposition, when
the measure

is

presented to either House, can

and does go much further

into detail than any

" message " can possibly do, however lengthy

and

at a time

when

it

is

most convenient

;

for

the purposes of discussion that those details

should be
public.

laid

before

the

House and the

ch.

POWERS OF CONGRESS.

xiii.]

CHAPTER

183

XIII.

POWERS OF CONGRESS.

With two

or

three exceptions, the matters

falling within the jurisdiction of

Congress are

the same as those that are within the province
of the Legislature of this country.

The

first

exception to be noticed respects the important
article

In

of taxation.

Congress are limited.

this

the powers of

They extend

only to

the specific objects of " paying the debts and

providing for the

common

defence and welfare

of the United States" (sect 8, clause 1).
tax, therefore, laid

"A

by Congress for neither of

these objects would be unconstitutional, and
in excess of its legislative authority."*

power of taxation

The

for all other purposes except

those mentioned remains in the several State
* Story,

§ 908.

POWERS OF CONGRESS.

184

L

[ch. xra.

Legislatures. In the adjustment of these powers

between the general Government and that of
the different States

many questions

are discussed at length by

but they have

little

Mr.

arose,

which

Justice Story,

practical hearing

beyond

the limits of that country.

The more

important exception in a general

point of view relates to the power of declaring

This power, which with us

war.

sive prerogative of

the Crown,

is

is

the exclu-

placed by

the Constitution of the United States in the

By

hands of Congress.
quoted Congress

the

article

above

empowered "to declare

is

war, grant letters of marque and reprisal, and

make

rules concerning captures on land

and

water."

The

object in view, according to

power of making war

Story, in placing the

the

in

hands of the two Houses of Congress,

instead of intrusting

"

to

"

War

tical

Mr. Justice

make

it

more

being in

its

it

difficult

it

was

to declare war."

nature and effects so

and calamitous,

deliberation,

to the President,

cri-

requires the utmost

and the successive review of

all

POWERS OF CONGRESS.

ch. xih.]

nation."*

the councils of the

185
was pro-

It

posed at the time of the framing of the Constitution,

that

as

promptitude of action, as

well as wisdom, were required on such critical

may

occasions as

justify war, it

would he more

expedient to place the power of declaring
in the Senate alone

a body composed of

;

it

men

of great " weight, sagacity, and experience." *

But the argument prevailed

that

it

would be

desirable to interpose delay, by requiring the

consent of the bodies more directly represent-

ing the mass of the people,

pay the taxes incident

Mr.

Justice Story

restriction
still

it

;

all.

to war.
is

on" ought

And

it

to

the

that

who

is

to

have a voice in deter-

ought

to

be entered upon

he adds, that "there might be

a propriety in enforcing
tions, as,

of opinion

that " the Executive

mining whether
at

to

might have been usefully extended

further

carry

who would have

still

greater restric-

by requiring a concurrence of two-

thirds of both

Houses

;*'* for in his

" the history of republics has but too
*

§ 1171.

opinion
fatally

PO WEES OF CONGRESS.

186

[ch.

xm.

proved that they are too ambitious of military

fame and conquest, and too

easily devoted to

who

the views of demagogues,

flatter

their

pride and betray their interests."

....

Under such circumstances war "

sometimes

fatal to liberty itself,

by introducing a

military glory, which

ever a successful

is

spirit of

ready to follow wher-

is

commander

will lead.'

,#

It is continually asserted with great earnest-

ness by persons
to respectful

—and

who have

the highest claims

attention in the

United

States,

their opinions are reflected in the

most

respectable portions of the press of that country

that the tendencies of the public

there

are

not

towards

"military

mind

fame and

conquest," and that the ambition of military
glory,

and the readiness

who have obtained

it,

to

are

be swayed by those
not, to

any dan-

gerous extent, the characteristics of the mass
of the people.
this

That the persons who take

view do so in

no possible doubt
their influence,

all sincerity,
;

and their hope

and those
*

there can be

§

ties

1171.

is

that

of peace arising

POWERS OF CONGRESS.

ch. xiil]

187

out of material interests, which are daily ex-

panding, and embracing more and more persons in the community,

any time of real danger

will

be

sufficient in

and

to counterbalance

restrain the aggressive tendencies of the

more

excitable portion of their fellow-citizens.

Whatever may be the case

in

future, it

cannot be said that the history of the past
gives encouragement to any such hope.
perfectly well

known, and admits of no

pute, that both the

war were entered
and

It is

Texan and

the

dis-

Mexican

into against the opinions

in spite of the energetic warnings of a

vast proportion of the most mature statesmen

of the country, supported by the whole weight

of that portion of the
ferred

to.

But there

community above

is

no need

to

re-

go back

even to those comparatively recent instances
for proof of the aggressive tendencies of the

people of the United States, considered as a
whole,

and judged of by the

Government*.

The whole

acts

of their

of the exceedingly

minute and elaborate despatch of the

late

Secretary for Foreign Affairs in that country,

POWERS OF CONGRESS,

188

[en. xin.

Mr.

Everett, on the subject of Cuba, dated

1st

December, 1852, and addressed

to the

Minister for Foreign Affairs in Great Britain,
is

devoted to proofs and illustrations of the
the

that

fact

States has

opinion of the United

public

compelled the Government to ad-

vance in that career of conquest and annexathe successive steps of which he at so

tion,

much
goes
the

length

beyond
question

entered

into

But Mr. Everett

describes.
that,

and avows,

in

relation to

then at issue, that any treaty

between

the

United

States,

France, and Great Britain, containing mutual

engagements

to respect

the present state of

Cuba in all future
" a new and powerful

possession of the Island of
time, would but give

impulse" to those acts of lawless aggression

which the Government of the United
though

it

States,

had disavowed and discouraged them,

had not been able
It cannot

to prevent.

be a matter of surprise that Lord

John Russell,

as Secretary of State for

Affairs, should, in his

February, 1853,

to

Foreign

answer of the 16th of

Mr.

Everett's despatch,

POWERS OF CONGRESS.

ch. xiil]

189

have described the above argument and admission as " disquieting."

The

attacks that

had been made on the

Cuba "by

lawless bands of adven-

island of

from

turers

the

United

States,

with the

avowed design of taking possession of that
island,"

the

had been, under various

most part openly

justified

pretexts, for

by

a

large,

powerful, and active portion of the press of
that country, representing the opinions of the

ultra-democratic

party

;

condemned with such a

or,

if

condemned,

quality of censure as

implied, and in fact gave, encouragement to

renewed

efforts.

One

of the

topics of justification was, that

most common

Great Britain

and France were each intriguing

to obtain

a cession of the island from Spain, and that

was necessary

to anticipate

them by

it

assisting

the inhabitants to declare their independence
of Spain, with the view to their then applying
for admission into the

To

Union.

prove to the world that the imputation

of any such intrigue was groundless, the Earl

of Malmesbury,

then Secretary of State for

POWEES OF CONGRESS.

190

[ch.

xm.

Foreign Affairs, on the part of Great Britain,

and M. de Turgot on the part of France, proposed to the Government of the United States,
that they should " declare, severally and collectively,

that they will not obtain, or main-

tain for themselves, or for
selves,

any one of them-

any exclusive control over the said

island of Cuba, nor

assume nor exercise any

dominion over the same."

Such a convention would manifestly give
every security to the United States, that

would never

fall

into the

Cuba

hands of either of

the only two powers ever likely to be "rivals

with the United States for the possession of

But Mr. Everett, on the part

it."

of his Govern-

ment, refused to enter into any such convention,

on two grounds.

The

first,

by asserting " that Cuba

United States what an island
the

Thames

at the

or the Seine would be to

is to

the

mouth

of

England

or France," seems to imply, in the words of

Lord John

Russell's despatch,

" that Great

Britain and France have no interest in the

maintenance of

the

present

status

quo in

POWERS OF CONGKESS.

ch. xiil]

]

91

Cuba, and that the United States have alone
a right to a voice in that matter."

To

any such implied argument there could

be but one answer, which was given by Lord

which

in language

John Russell

it

impos-

is

sible to mistake.

"

Her

Her

such a claim.

at once refuse to

admit

Majesty's possessions in the

West

Government

Majesty's

without insisting

Indies alone,

Mexico and other friendly

on the

importance to

States, of the present distribu-

Her Majesty an
cannot forego. The

tion of power, give

interest in this ques-

which she

possessions of France

tion

in the American seas give a similar interest to France,

which no doubt

Mr.

will be

put forward by her Government."

Everett's second ground for refusing to

enter into the proposed convention was that

above adverted
the

to

Government
strengthen

only

engaged

in

—namely,

that by so doing,

of the United States

the

those

hands

of

the

would
persons

violations of international

" instead of putting a stop

to those

lawless proceedings, this would give a

new and

law

;

that,

powerful impulse to them."

Upon

this,

Lord John Russell very

truly

POWERS OF CONGRESS.

192
remarks, that

this is

[ch. xiti.

" a melancholy avowal for

the chief of a great State."

The

force

of public

opinion,

which had

compelled " the absorption or annexation of
Louisiana in

Texas

in

1803, of Florida in

1819, of

1845, and of California in 1848,"

according to the enumeration of Mr. Everett,
is

now being brought

quisition of

United

to

bear upon the ac-

Cuba, by a powerful party

States,

whose cry

is,

that

it

in the
is

the

"manifest destiny" of their Government "to
absorb the whole of that continent and the
islands."

The weakness

of

the

Executive

in

United States has rendered nugatory the

the
at-

tempts of the Government to prevent those
lawless attacks

upon Cuba, which

it

disavows

and stigmatises.

The

Secretary

for

Foreign

Affairs,

Everett, while refusing on the part of his

vernment

to take a step

Mr.

Go-

which would entirely

deprive those lawless attempts of the principal

argument on which they
cation,

rely for their justifi-

assigns reasons for his refusal which

POWERS OF CONGRESS.

ch. xiil]

193

give direct support to the idea, that the an-

Cuba

nexation of

is to

be looked upon as only

a portion of the progressive increase of the
possessions of the United States, without re-

ference to the rights and interests of other

powers; and that any act done by the Go-

vernment of the United States with the view
of repressing the

march

of lawless aggression

towards that object, would only accelerate

and diminish

in proportion the authority

means of the Government

itself,

it,

and

in support of

the law of nations, and the principles of justice

and good neighbourhood.
If that be so, even the recommendation of

Mr.
more

Justice Story,

(instead

war,
of,

in

order to put a

check upon the power of de-

effectual

claring

that,

the
as

at

concurrence of tw o-thirds
r

present,

a

majority)

of

both Houses of Congress should be rendered
necessary,

would have but a

slight

chance of

interposing an effectual barrier against views

and expectations that make such
of the rights of others.

little

account

There can be but one

effectual obstacle to such pretensions

—namely,
K

POWERS OF CONGRESS.

194

[ch. xiii.

the knowledge of the fact, that the
in maintaining

interested

powers

rights have

those

both the strength and the will to cause them
to

be respected

;

and that lawless aggression,

however disguised,
will

be met

at

and

however supported,

once by a force capable of

maintaining " the eternal laws of right and

wrong," and inflicting punishment on those

who

violate them. #

* Mr. Everett

has, since

what remarkable course

he quitted

office,

taken the some-

John

of addressing to Lord

and publishing in the American papers, a

letter in

Lord John Russell's despatch, addressed

him

to

Russell?

answer to

as the Minister

of Foreign Affairs of the United States.

Upon this private letter, thus made
comment is justifiable.

public property, a public

Mr. Everett states that his reference to the absorption or
annexation of Louisiana, Florida, Texas, and California " was
intended as an illustration of the proposition that the entire
history of the

United States shows

it

to be chimerical

attempt, in reference to specific measures, to bind

up

to

for all

future time the discretion of a Government established in a

part of the world of which so

much

is still

lying in a state of

nature."
It

may be

asked, " Is

argument of

Cuba

in a state of nature

this kind, equivocal

1

" and can an

with regard to the other

a
See also the Daily News of October 8, 1853, in which Mr.
Everett's letter, occupying above two columns, is given entire.

POWERS OF CONGRESS.

xm.]

ch.

195

enumerated instances, be held in any respect applicable to
this?

Mr. Everett adduces this further justification of his line of
reasoning

"Nor

:

does the remark in

my

letter of the 1st

December, that

a disposition to engage in such enterprises would be increased
rather than diminished by our accession to the proposed convention, strike
it,

me

as a

'

melancholy avowal,' as you pronounce

on the part of the President.

which such adventurers

You

forget the class from

are, in all countries, enlisted

What

young, the reckless, the misinformed.

—the

other effect could

be expected to be produced on this part of the population by
being told that their

most obvious public
historical

own Government,

in disregard of the

interests, as well as of the

traditions,

had entered

most cherished

into a compact with

two

foreign powers to guarantee the perpetuity of the system

under which Cuba now suffers?"

Upon
less,

this it is to

be observed, that to " the young, the reck-

and the misinformed," as the prime movers of the lawless

aggression against Cuba, are to be added

Houses of Congress,
States,

officers in

members

and no unimportant portion of the public

It is further to

of both

the public employ of the United

be remarked, that

it

press.

was no object of the two

foreign powers "to guarantee the perpetuity of the system

under which Cuba now

The expressions

suffers."

of

the

Minister of Great Britain to the Spanish Government, quoted

by Mr. Everett

himself,

and were being made
Lastly,

it is

show that the greatest

to produce

to be noticed that

efforts had been
an amelioration of that system.

Mr. Everett refers to " the most

obvious public interests" of the United States as counselling
abstinence from any such pledge as the one offered to her
acceptance.

On

the latter point Mr. Everett

other paragraphs.

He

states that

is

even more explicit in

Lord John Russell miscon-

K

2

POWERS OF CONGRESS.

196

[ch. xiii.

him

conceived his meaning in understanding

to

imply " that

Great Britain and France had no interest in the status quo in

Cuba."
"

Our doctrine

not that

is,

we have an absolutely exclusive
we have a far deeper and more

interest in the subject, but that

immediate interest than France or England can possibly lay
" Therefore," he adds, " I do not see

claim to."

not as good a right

to obtain, if

we

why we have

can, from Spain, the volun-

tary cession of Cuba, as Great Britain had to accept the com-

pulsory cession of Trinidad."

After such plain language as
to

this, it is

vain for Mr. Everett

expect to check the aspirations or the actions of those

desire to obtain

Cuba

at

any

cost,

by the expression, in

letter, of his individual opinion, " as

same

as being adverse to its annexation

;

who
this

a private citizen,"

" that he does not covet

it."

To the same

real effect are the words of the late President,

Mr. Filmore, in his message of 6th Dec, 1852. After disclaiming,

on the part of the Government, any designs of the United States
against Cuba, he adds that " he should regard
into the

And

Union

at the present time as fraught

its

incorporation

with serious

peril."

the present President (Mr. Pierce), in his inaugural ad-

dress, delivered in

disguise,

cessor

March, 1853

(see p. 228),

and has proclaimed the policy

had already given an implied

When men of

the

first

to

has thrown off

which

all

his prede-

sanction.

position in the United States openly

adopt, and while others in one breath condemn, and in the next

encourage the idea of the annexation of Cuba, and speak of it as
only a question of time, there will not be wanting other persons besides " the young, the reckless,

who
less

will

be ready to

amount of

the matter,
terests of

is

profit

interest

and the misinformed,"

by such teaching.

The greater

or

which the two countries may have in

not the question.

It is sufficient that the in-

England are great and important in the whole of

POWERS OF CONGRESS.

ch. xih.]

that quarter of the world.
far distant

when

It is to

I97

be hoped that the day

is

she would look with indifference upon a blow

aimed at the very

least of

them

;

whether prepared by such

means, covert and open, as ended in the annexation of Texas,
or

by bands of " lawless adventurers,"

the United States
different stamp,
effect

is

whom

the Executive of

unable to control, or by persons of a very

whose actions are condemned in words, but in

encouraged, by

men

lately responsible

policy of that country, and are

now openly

for

the public

sanctioned by the

President.
It will

be necessary to recur briefly to this subject in the

next chapter, in illustration of the political position of the
Executive.

THE EXECUTIVE.

198

CHAPTER

[ch. xiv.

XIV.

THE EXECUTIVE.

By

the second article of

the Executive power
of the United States,

is

the

Constitution*

vested in the President

who

holds his

office for

the term of four years.

The

object to be

aimed

at in every well-

organised Government, in respect to the Executive, is correctly stated

by Mr. Justice Story

to

be the securing as great an amount of energy
as is consistent with the public liberties

he proceeds
"

The

notion

to
is

;

and

remark that
not uncommon, and occasionally finds in-

genious advocates, that a vigorous Executive

is

inconsistent

with the genius of a Kepublican Government."!

To
" It

this

he answers most

is difficult to

* Section

1,

find

clause

any
1.

truly, that

sufficient

grounds on which

t

§ 1417.


THE EXECUTIVE.

ch. xiv.]

to rest this notion

;

199

and those which are usually stated

belong principally to that class of minds which readily
indulge in the belief of the general perfection, as well as the
perfectibility of

human

nature,

quantity of power, with which

To

be the best.

and deem the

least possible

Government can

subsist, to

those who look abroad into the world, and

attentively read the history of other nations, ancient

modern,

lessons are

different

far

Those lessons instruct them that energy

truth and force.
in the Executive

is

a good government.

a leading character in the definition of
It

is

community against foreign

essential to the protection of the
It is not less essential

attacks.

to the steady administration of the laws

of property against those irregular

prises
.

and

to the protection

to the security of liberty against the enter-

and assaults of ambition, of
.

.

and high-handed combi-

which sometimes interrupt the ordinary course of

nations,
justice,

and

taught with a severe

"

.

tion of the

A

faction,

and of anarchy.

feeble Executive implies a feeble execu-

Government.

A feeble

execution

is

phrase for a bad execution, and a government

may

whatever

be

its theory,

but another

ill

executed,

must, in practice, be a bad

government." *

He
"

The

then lays

it

down

ingredients which constitute energy in the Execu-

tive are, unity, duration,
port,

that

an adequate provision

and competent powers.

stitute safety in a republican

The

for its sup-

ingredients which con-

form of government

are, a

dependence on the people, and a due responsibility
people."-}-

*

§ 1417.

f

§

1418.

due

to the

THE EXECUTIVE.

200

[ch. xiv.

Montesquieu has said that " the executive
branch of government, having need of despatch,

is

better administered by one than by

The

many."*

best writers have invariably

considered energy as the most necessary qualification

of

Executive

the

;

and

that

this

energy, manifested in the qualities of " decision,

activity, secrecy,

and despatch,"

best secured by placing the executive

will

be

power

in

one hand rather than in many.

The manner
is

in

which the executive power

adjusted under the British Constitution, as

well as the practical efficacy of that power,

present some striking contrasts with both the
theory and practice of the United States.

By

the theory of our Constitution, our here-

invested with the power of

ditary Sovereign

is

the Executive.

In the exercise of this power,

the prerogatives of the
respected, and

within the

it is

limits

Crown

are

known and

a fundamental axiom that
those prerogatives

of

Sovereign " can do no wrong."

Removed

the
be-

yond the sphere of popular interference and
* Bk.

ii.

chap.

vi.

THE EXECUTIVE.

ch. xiv.]

201

control,

by position, by the certainty and dura-

tion of

power and, in many important parin the exercise of

ticulars,

Crown

that

power, the

of Great Britain nevertheless, in all

the ordinary concerns of government, acts, and
practically can only act, through the instru-

mentality,

of

and on the advice and

responsibility,

the Executive Council, composed of

principal Ministers of State.

Council

is

the

This Executive

not too numerous to

fulfil

the

first

requirements of a properly-constituted executive authority, in the ability to act with decision,

energy, secrecy, and despatch, in cases requir-

ing those qualities.

And owing

the circum-

stance of their being called upon to act at

all

(or at least of their continuing to act), to the
fact of their also representing,

and being sup-

ported by, the majority of the Legislature, they

combine, with the

which

is

stable,

Crown,

authority of the

uniform, exalted, and inde-

pendent of popular influences, the power of
the whole body of the community as expressed

by the majority of both Houses of

Parlia-

ment.

K

3

THE EXECUTIVE.

202

The

last thing, therefore, of

[ch. xiv.

which there

any complaint or apprehension in

this

is

country

that there should be any weakness in the

is,

There may be

Executive.

may be

public councils, and there

coming

in

indecision in the

to conclusions as to

or should not be enacted

;

what laws should

but the law once

passed, the decision once taken,
into effect with an authority

difficulties

carried

is

it

and a vigour which

no individual and no combination of individuals
can successfully

Under

resist.

the Constitution of the United States

the position of the President, as the Executive magistrate, is

chosen by and

"

wholly different.

made

He

is

responsible to the people."

He

therefore acts through no executive coun-

cil,

neither

is

his

responsibility in

divided or controlled.
sible to the

Being made respon-

people by being specially elected

to that office,

ment

any way

he has "the exclusive manage-

of the affairs for

which he

is

thus

made

responsible." *
It

might naturally be
* Story,

imagined that an

§ 1427.

THE EXECUTIVE.

ch. xiv.]

officer

203

thus elected, and thus directly appointed

by the people

high

to this

office of sole

execu-

tive magistrate, should therefore, in the exer-

armed with an

cise of his duties, feel himself

authority so

as

firm,

to

leave no

room

for

doubt or hesitation on any occasion that called
for the exercise of

he

is

it

;

and the more so because

the representative of the

last,

and that

a very recent, expression of the popular

But the fact

is

not

The weakness

so.

Executive of the United States

Many
very

is

will.

of the

not disputed.

One

reasons have been given for this.

obvious

one

that

is,

having been but

recently chosen as the representative of public
opinion, he cannot act with vigour against the

sense of any large body of his supporters, should
his duty require

him

to

do

so,

without alienating

those supporters, or perhaps converting
into opponents.

But the principal reason

the want of duration in office

very peculiarity in his
distinguishes

them

him from

;

position

in fact,

is,

the

which most

the Executive of this

country.

That such

is

the inclination of

Mr. Justice


204

THE EXECUTIVE.

Story's opinion

is

following passages

[ch. xiv.

abundantly clear from the
:

" It has been already mentioned that duration in office
constitutes

an essential requisite

energy of the execu-

to the

This has relation to two objects

tive department.

first,

;

the personal firmness of the chief magistrate in the

ployment of his constitutional powers
of the

stability

system

;

With

have been adopted under his auspices.
the

first, it is

which may

administration

of

em-

and, secondly, the

regard to

evident that the longer the duration in

office,

the greater will be the probability of obtaining so im-

portant an advantage.

A man

will naturally be interested

in whatever he possesses, in proportion to the firmness or

precariousness of- the tenure by which he holds
will

it.

He

be less attached to what he holds by a momentary or

uncertain
certain

;

title,

than to what he enjoys by a

and of course he

will

the one than for the other.

title

durable or

be willing to risk more for

This remark

is

not the less

applicable to political privilege, or honour, or trust, than
to

any

article of ordinary property.

A

chief magistrate,

acting under the consciousness, that in a very short time

he must lay down
little

office, will

interested in

it

to

be apt to feel himself too

hazard any material censure or

perplexity from an independent exercise of his power, or

from those ill-humours which are apt
all

at times to prevail

If the case should be that

governments.

notwithstanding, be re-eligible, his wishes,

have any

for office,

his fortitude,
irresolution.

or

would combine with his

weaken

his

integrity,

if

he should

fears, to

or

on

he should,

debase

enhance his

;

THE EXECUTIVE.

oh. xiv.]

" There are some,

perhaps,

205

who may be

inclined to

regard a servile pliancy of the Executive to a prevalent
faction or opinion in the

as

community, or in the Legislature,

But such notions betray a

best recommendation.

its

very imperfect knowledge of the true ends or objects of

While republican principles demand that

government.

the deliberate sense of the community should govern the

conduct of those who administer their
observation

escape

affairs,

transient impulses

that

it

cannot

and sudden

excitements, caused by artful and designing men, often
lead the people astray, and require their rulers not to
yield

up their permanent interests

to

any delusions of

It is a just observation that the people

sort.

But no one but a deceiver

intend the public good.

this

commonly
will

pretend that they do not often err as to the best means of

promoting

it.

Indeed, beset as they are by the wiles of

sycophants, the snares of the ambitious and the avaricious,

and the

artifices of those

who possess

than they deserve, or seek to possess
their prejudices, the

wonder rather

their confidence
it

is,

by

more

artful appeals to

that the errors are

not more numerous and more mischievous.

It is the duty

of their rulers to resist such bad designs at all hazards

and

it

has not unfrequently happened that by such resist-

ance they have saved the people from fatal mistakes, and,
in their

moments

of cooler reflection, obtained their grati-

tude and their reverence.

But how can

expected where the tenure of

office is so short, as to

it

ineffectual

What

and insecure

should

be

?"

resistance be

make

*

the

proper

* §§ 1430, 1431.

duration

of


THE EXECUTIVE.

206

[ch. xrv.

the President of the United States

office for

is,

according to Mr. Justice Story's opinion,
" Matter of

hand,

it

more doubt and

may be

speculation.

On

the one

said that the shorter the period of office,

the more security there will be against any dangerous abuse

The longer

of power.
sibility

be

felt,

On

indulged.

the period the less will respon-

and the more personal ambition
the one

will

be

hand, the considerations above

stated prove that a very short period

is,

practically speak-

ing, equivalent to a surrender of the executive power, as a

check in government, or subjects
lation

it to

an intolerable

vacil-

and imbecility."*

Accordingly, during

the

upon

discussions

the Constitution in the Convention that framed
it,

it

was proposed by Mr.

Madison,

Mr.

Hamilton, and Mr. Jay, three of the ablest
statesmen of that remarkable period, that the

Executive of

the

United States should be

appointed " during good behaviour, or in other
words, for life."t

Convention

it

By

other

members

of the

was proposed that the appoint-

ment should be

for seven years.

The

opinion

in favour of the appointment for four years

§

1435.

t

§ 1436, note.


THE EXECUTIVE.

ch. xiv.]

only,

prevailed,

and upon

Whether

Justice

:

the period of four years will answer the pur-

pose for which the Executive department
as to give

Mr.

this

Story thus expresses himself
"

207

it at

is

established, so

once energy and safety, and to preserve a

due balance in the administration of the Government,

problem which can be solved only by experience.

is

That

a
it

more than a shorter period towards

will contribute far

these objects, and thus have a material influence upon the
spirit

and character

of the

Government, may be

safely

Between the commencement and termination

affirmed.

of the period of office, there will be a considerable interval
at

once to justify some independence of

opinion and

and some reasonable belief that the propriety of

action,

the measures adopted by the Administration

and

felt

by the community at large.

may be

seen

The Executive need

not be intimidated in his course by the dread of an immediate loss of public confidence, without the

ing it before a

new

election

;

power of regain-

and he may, with some

confi-

dence, look forward to that esteem and respect of
fellow-citizens,

his

which public services usually obtain when

they are faithfully and firmly pursued with an honest devotion to the public good.
will still

into effect a wise

as well as
to retire,

If he should be re-elected, he

more extensively possess the means
and beneficent system of

domestic.

And

if

of carrying

policy, foreign

he should be compelled

he cannot but have the consciousness that mea-

sures long enough pursued to be found useful will be per-

severed in

;

or

if

abandoned, the contrast will reflect new


THE EXECUTIVE.

208

[ch. xiv.

honour upon the past administration of the Government,

and perhaps reinstate him in
is

office.

At

all events,

the period

not long enough to justify any alarms for the public

The danger

safety.

will

not that such a limited Executive

is

become an absolute

dictator; but that

whelmed by the combined operations
and

legislative power.

It

may be

the limited duration of this

to the task

Again,

of popular influence

reasonably doubted, from

whether, in point of

office,

independence and firmness, he

he may be over-

will

not be found unequal

which the Constitution assigns him." *

executive

the

magistrate

of

.

.

the

United States " being chosen by and made

we have

responsible to the people," has, as

seen

" the exclusive

above,

the affairs for which he

He

sible."!

is,

is

made

thus

in fact, the

country, irremovable

the

management

four

for

years,

as

Accordingly

Justice Story thus speaks of the duties

imposed upon him
"

respon-

prime minister of

well as the executive magistrate.

Mr.

of

The nature

sident,

both at

plicated

wisdom

as

:

of the duties to be performed by the Pre-

home and

abroad, are so various and com-

not only to require great talents and great

perform them in a manner suitable to their

to

importance and

*

difficulty,

§ 1439.

but also long experience in

t

§ 1427.


THE EXECUTIVE.

ch. xiv.]

office to

acquire what

nistration,

may be deemed

209
the habits of admi-

and a steadiness as well as comprehensiveness

of view of all the bearings of measures.

narrow range

;

The

executive

and confined

duties in the [individual] States are few,

those of the President embrace

all

to a

the ordi-

nary and extraordinary arrangements of peace and war, of

diplomacy and negotiation, of finance, of naval and military operations,

and of the execution of the laws through

almost infinite ramifications of

and in places

details,

He

vast distances from each other.

is

at

compelled con-

stantly to take into view the whole circuit of the Union,

and

to

master many of the

stances which
to

may

meet the public

local interests

require

new

exigencies.

and other circum-

adaptations of measures

Considerable time must

necessarily elapse before the requisite knowledge for the

proper discharge of

all

the functions of his office can be

;

and

after it is obtained, time

to enable

him

to act

obtained

must be allowed

upon that knowledge,

so as to give

vigour and healthfulness to the operations of the Govern-

ment."*

It will excite

no surprise that Mr. Justice

Story, after the above description of the qualifications required in

a President, should pro-

nounce a very guarded and qualified opinion
as

to

the sufficiency of his term of office of

four years.

His words are
*

§ 1440.


THE EXECUTIVE.

210

" Hitherto our experience

[ch. xiv.

has demonstrated that the

period has not been found practically so long as to create

danger to the people, or so short as
able independence
it

to take

away a reason-

and energy from the Executive.

Still,

carmot be disguised that sufficient time has scarcely yet

elapsed*

to

enable us to pronounce a decisive opinion upon

the subject." f

The

experience of the last twenty years has

certainly

favour

in

....

not

presumption

strengthened the

of the

" reasonable independence

and energy" of the Executive of the United
States.

The
is to

quick recurrence of the period which

decide whether he

returned to private

life,

is

to

be re-elected or

cannot but exercise an

unfavourable influence over his proceedings.

The

question whether

conducive

to

the

it

would not be more

public

interests

that

he

should be elected for a longer period, and be

then ineligible for re-election,
considered open to discussion.
ject,
"

A

Mr.

Justice Story says

is

one which

On

this sub-

:

President chosen for ten years might be made

eligible

is

in-

with far less impropriety than one chosen for

* Written in 1833.

t

§ 1441.

THE EXECUTIVE.

ch. xiv.]

four years.

And

ought not

be again

to

by such a term
diminished,

211

a President chosen for twenty years
eligible,

upon the plain ground that

of office his responsibility

would be greatly

and his means of influence and patronage

greatly increased, so as to check in a great measure the

just expression of public opinion, and the free exercise of

the elective franchise.

Whether an intermediate

period,

say of eight years, or of seven years, as proposed in the

Convention, might not be beneficially combined with sub-

sequent

upon which great statesmen

ineligibility, is a point

have not been agreed, and must be

left to

the wisdom of

The inconvenience

future legislators to weigh and decide.

of such frequently-recurring elections of the chief magistrate,

by generating

agitating

the

attracted as
evils

may

factions,

much

combining intrigues, and

seems not hitherto

public mind,

attention as

it

deserves.

possibly occur from this source

stant state of excitement, which will

;

to

One

either a con-

prevent the

operation of the measures of an Administration;

growing indifference

to the election,

candidates and the people, which
tically into the

hands of the

selfish,

have

of two

fair

or a

both on the part of

will surrender it prac-

the office-seekers, and

the unprincipled devotees of power.

It has been justly

remarked by Mr. Chancellor Kent, that the election of a

supreme executive magistrate

many

interests,

passions,

for a

whole nation

affects so

addresses itself so strongly to popular

and holds out such powerful temptations

ambition that

it

public virtue, and

necessarily becomes

to

a strong trial to

even hazardous to the public tran-

quillity."*

*

§ 1449.

THE EXECUTIVE.

212

The mode

[ch. xiv.

of election for the President

vice-President,

originally

tinued until the

adopted,

amendment

and con-

of the Constitu-

was (by

tion in that particular in 1804,

by electors specially appointed

sect. 1)

and

art. 2,

for that

purpose by the Legislature of each State (in

number equal

to the

number

and representatives of each

of the senators

State),

who w ere
r

to

conduct the election in the manner pointed out

The

in that article.

votes of these " electoral

colleges" were directed to be transmitted to the
seat of the national

Government,

in the presence of both Houses,

declared.

The

if

be counted

and the

result

person having a majority of the

whole number of votes was

But

to

to

be President.

no one of the candidates had such a

majority, then the

House

of Representatives,

the popular branch of the Government, was
to elect

person

from the

whom

five

they might

for the office, each State

choice.*

number

The

highest on the

deem

list

the

best qualified

having one vote in the

person having the next highest

of votes was to be vice-president.
*

§ 1454.

If


THE EXECUTIVE.

ch. xiv.]

213

two or more had equal votes, the Senate was
to

choose the vice-president.

On

mode

this

of election

Mr.

Justice Story

had

observes, that the principal difficulty that

been
"

felt

The

on the subject was

constant tendency, from the

dates, to bring the choice into the
tives.

number

House

of candi-

of Representa-

This has already occurred twice in the progress of

the Government, and in the future there
bability of a far

early foreseen

;

is

every pro-

more frequent occurrence.

This was

and even in one of the State conventions,

a most distinguished statesman, and one of the framers of
the Constitution, admitted that

would probably be found

it

impracticable to elect a President by the immediate suffrages of the people

and that in

;

persons would probably be voted
the five highest on the
able

number

list

so large a country

for,

many

and that the lowest of

might not have an inconsider-

It cannot escape the discernment

of votes.

of any attentive observer, that

if

the

House

of Representa-

tives is often to choose a President, the choice will, or at

least

may, be, by many motives independent of his merits

and

qualifications.

cabal

may mix

There

is

danger that intrigue and

with the rivalries and

will

probably long

outlive

And

strife.

cords, if not the corruptions generated

the dis-

by the occasion,

the immediate

choice,

and

scatter their pestilential influences over all the great interests of the country.

One

fearful crisis

was passed in

the choice of Mr. Jefferson over his competitor

Mr. Burr

in 1801, which threatened a dissolution of the Govern-


214

THE EXECUTIVE.

[ch. xrv.

ment, and put the issue upon the tried patriotism of one

who

or two individuals,

yielded from a sense of duty their

preference of the candidate generally supported by their
friends."*

The

issue of this contest of

amendment

the

to

the

of

1801 gave

rise

Constitution

in

1804, above adverted to
" Materially changing the

In the

sident.

*
sion

§ 1464.
is

first place, it

mode

of the election of Pre-

provides that the ballots of

Mr. Justice Story here adds in a note, "Allu-

here especially

made

to the late

Mr. Bayard, who held

the vote of Delaware, and who, by his final vote in favour of

Mr. Jefferson, decided the

election.

It

was remarked at the

time, that in the election of Mr. Jefferson, in 1801 (which was

made by

the House of Representatives in consequence of none

of the candidates having a majority of the whole
voters), the votes of

who soon afterwards
stance

received office from him.

The circum-

spoken of in positive terms by Mr. Bayard, in his

is

celebrated speech on the Judiciary in 1802.

not

number of

two or three States were held by persons

make

it

Mr. Bayard did

matter of accusation against Mr. Jefferson, as

founded on corrupt bargaining, nor has any such charge been
subsequently made.

how

The

fact is here stated merely to

show

peculiarly delicate the exercise of such functions neces-

sarily

is

;

and how

difficult it

and pure Executive,

may be,

even for the most exalted

to escape suspicion or reproach,

not chosen directly by the people.

when he is

Similar suggestions will

scarcely fail of being made, whenever a distinguished representative obtains office after an election of President, to which

he has contributed."


THE EXECUTIVE.

ch. xiv.]

215

the electors shall be separately given for President and
vice-president, instead of one ballot for two persons as

President;

that the

electors appointed

whom

vice-president, like

the President,

by a majority of the whole number of

shall be chosen

number

that the

;

the election of President

is to

of candidates out of

be made by the House

of Representatives, shall be three instead of five

;

that the

Senate shall choose the vice-president from the two highest

numbers on the

list

and that

;

if

no choice

March

sident before the 4th of

is

made

of Pre-

following, the vice-pre-

sident shall act as president."*

Upon

this

amendment Mr.

remarks, that
"

Has

Justice

Story

it

alternately been the subject of praise

and blame,

and experience alone can decide whether the changes are
for the better or the worse." f

And

to

the

same

effect

Mr. Justice Kent

tions of

are the observain his "

Commen-

taries"!
"

The

election of

Union; and the

1801 threatened the tranquillity of the
occurred in that case in

difficulty that

producing a constitutional choice, led to the amendment of
the Constitution on this subject

ment be

;

for better or for worse,

but whether the amend-

may be

well doubted, and

remains yet to be settled by the lights of experience."

One
*

of the principal reasons

§ 1466.

f

§

1468.

which weighed
% Vol.

i.

p. 279.


THE EXECUTIVE.

216
with

framers

the

of

the

[ch. xiv.

Constitution,

recommending that a small body

in

of persons

should be " selected by their fellow-citizens

from the general mass" for the

specific pur-

pose of electing a President, was, that such a

body " would be most

and

discernment,

formation,

for

essential

likely to possess the in-

proper

the

independence,

discharge

of

this

duty."*

Mr. Justice Kent
"

To

also describes

close the opportunity as

much

it

thus

:

as possible

against negotiation, intrigue, and corruption,"
the Constitution

has confided the power of

election to a small
in each State

under the direction of the Legis-

and has

lature,

body of electors appointed

left

to

Congress the deter-

mination of the day when these electors are to

be called together.!
all

that regards the independence of the

electors,

the object has manifestly not been

In

answered.

Mr.

Justice Story thus describes the actual
*

Story, § 1457.

+ Kent's Commentaries,

vol.

i.

p. 274.


THE EXECUTIVE.

ch. xiv.]

practice,

217

which has long since assumed a form

completely at variance with the theory of the
Constitution in this important particular
" It has

:

been observed, with much point, that in no

respect have the enlarged and liberal views of the framers
of the Constitution,

and the expectations of the

public,

been so conrpletely frustrated as in the practical operation
of the system, so far as relates to the independence of the
electors in the electoral colleges.

It is notorious that the

electors are

now chosen wholly with

candidates,

and are silently pledged

Nay, upon some occasions

reference to particular
to

the electors

vote for them.
publicly

pledge

themselves to vote for a particular person, and thus, in
effect,

the whole foundation of the system so elaborately

constructed

is

subverted.

The

candidates

for

the pre-

sidencv are selected and announced in each State long
before the election, and an ardent canvass

is

maintained in

the newspapers, in party meetings, and in the State Legislatures, to secure votes for the favourable candidates,
to defeat his opponents.

become the nominating body, acting in
cities,

and

Nay, the State Legislatures often
their official capa-

and recommending by solemn resolves their own

candidates to the other States.

So that nothing

is left to

the electors after their choice, but to register votes which
are already pledged;

and an exercise of an independent

judgment would be treated

as a political usurpation, dis-

honourable to the individual, and a fraud upon his constituents."*

* Story,

§ 1463.

THE EXECUTIVE.

218

[ch. xiv.

But another practice has

unknown

to the Constitution,

equally

arisen,

and equally de-

structive of all independence of choice on the

part of the electors.
the

It is obvious, that if all

candidates for the presidency on

side

were to be submitted

either

the electors,

to

there would be a great probability that no one

would obtain a majority of the

total

number

of votes, and that, consequently, the selection
of a President would be

House

of

transferred to

Representatives,

the

in

the

manner

pointed out by the Constitution.

To

prevent

this,

delegates of each party

are appointed previously, to meet in Convention,

and

to

determine which of the perhaps

numerous candidates on

their

side

shall

be

adopted as the candidate of the party.

When

the Convention has

the announcement
all

is

made

met and decided,

of the result, and

the electors belonging to their party, or to

any one of the many shades of

it,

throughout

the Union, are expected to give their vote accordingly, at the formal

and actual

election

THE EXECUTIVE.

ch. xiv.]

219

on the day appointed by Con-

for President,

gress for that ceremony.

Thus
party

the

is

whole numerical

directed in favour of one candidate,

and the probability

come

to

the

is

when

that,

found

poll will be

and therefore

will

have

to

whole number

required majority of the

voting,

the votes

be opened by Congress, the individual

head of the

at the

force of each

be duly elected, and

the necessity accordingly obviated of calling in
the aid of the

House

of Representatives.

But the consequence of
so

far

from

the

this

system

bringing

electors

is,

that,

to

bear

and

"their information,

discernment,

pendence" upon the

selection of a President,

as is expected of

inde-

them by the Constitution,

occasionally happens that they are required
give,

and do

an individual,
sident,

give, their votes, in
to

to

a body, for

be elected by them as Pre-

whose name, as a

have scarcely ever heard

politician, they
of,

qualifications for that high

absolutely

it

nothing

;

and

and of whose

office

this

may

they

after

know

having
L 2

"

THE EXECUTIVE.

220

[ch. xiv.

expended many months' exertions, and manifested the highest degree of interest, in favour

more

of one or

of the

Union belonging

in the

This system

many

most distinguished men

is

to their side of politics.

denounced very loudly by

able and patriotic persons in the United

States.

It

asserted that

is

its

effect

is

to

throw the whole business of " President-making " into the hands of professional politicians,

who make
its results.

a regular " trade," and live by

it

It is

rapidly upon

all

a system also that has gained
the very numerous elections

throughout the whole country, from that of
the smallest and most unimportant office in the
counties, cities,

and towns, through the various

gradations of State and national representatives,

up

to the President of the

Union.

It

has, therefore,

become a common mode of ex-

pression, that

" the people " have in reality

very

little

elections,

to

do practically with any of these

but

that

they

by the individuals who make
to manage them.

" wire-pulled

are
it

their business

THE EXECUTIVE.

ch. xiv.]

The

last

221

election

presidential

afforded

a

complete illustration of this process.

The
no

candidates on the democratic side were

than eight

less

:

General Cass, Mr. Bu-

chanan, Mr. Douglas, Mr. Marcy, Mr. Butler,

Mr. Houston, Mr. Lane, and Mr. Dickenson

men "prominently known

all

and the three
thusiasm

first

by large

;

to their party,"

supported with great ensections

of

that

party

throughout the Union.

The Convention

appointed by the democratic

party in each State to decide which

among

should be

recom-

these

various

mended

candidates

for their votes at the election, assem-

bled at Baltimore for their
the 1st of June, 1852.

On

first

meeting on

that day General

Cass obtained the greatest number of votes at
the

288

first ballot,
;

namely 116, out of the

but a number far below the requisite

majority.

A few specimens

which the votes fluctuated
interest.

total of

Cass,

of the

will not

manner

in

be without

On

the ninth ballot the votes were

112;

Buchanan, 87; Douglas, 39;


THE EXECUTIVE.

222
Marcy, 28
13

Butler,

;

Dickenson,

;

ballot

Lane,

Houston, 8

;

On

1.

Cass, 33

13

1

;

101

Houston, 10; Dickenson,
ninth ballot
ballot

—Cass,

Cass,

27.

Lane,

;

twenty-second

the

Douglas, 80

Buchanan,

;

[ch. xiv.

24

;

Marcy, 25

;

Butler,

;

;

1.

On

On

the thirty-fifth

131; Douglas, 52

the twenty-

;

Buchanan,

32.

On

this,

the sixth day of the meeting (the

proceedings of and the scenes in which were
fully

and somewhat graphically described by

the public press of both parties), a

appeared

for

Mr.

that of

gentleman

the

the

House

of

known

well

lawyer of ability
fulfilled

time upon the

first

Pierce,

;

New

of

;

lists

Hampshire,
friends

as

a
a

having creditably

member

a

of Representatives,

of the United States

his

to

also as

duties

new name

and

better

of

the

of the Senate

known, however,

having joined the army as a volunteer

as

on the breaking out of the Mexican war,

and
a

as

having commanded with

brigade

General.

in

that

It

will,

war,

with

distinction

the

nevertheless,

rank of
imply no

THE EXECUTIVE.

ch. xiv.]

disrespect

towards

Mr.

223

Pierce,

if

repeat

I

what was the universal expression, according
to the

public prints, throughout the Union,

that no individual in the United States could

have been more surprised

at

Mr.

Pierce's

nomination for the exalted and responsible
office of

chief magistrate of the Republic than

On

Mr. Pierce

himself.

the

which Mr. Pierce's name appeared,

first

in

he received 15

votes.

received only 55 votes

On
;

the numbers voting for
the total of 288

the thirty-fifth ballot,

the forty-eighth, he

but on the forty-ninth,

him were 283, out

— a vote which

of

5 more would

have made unanimous.

Mr. Pierce was accordingly recommended
to

the democratic constituencies

throughout

the Union, and was elected by a considerable

majority over his
bers being, for

Whig

opponent

;

the

num-

Mr. Pierce 1,504,471, and

for

General Scott 1,283,174.

The

circumstance particularly to be noted

in the whole of this proceeding in relation to

the Constitution of the United States

is,

that

whereas, according to the theory of that Con-

THE EXECUTIVE.

224
stitution,

certain

[ch. xiv.

nominated by the

electors

people of the United States are required to
exercise

their best

judgment and discretion

in selecting the person best qualified to

fill

high and important post of President,

in this

case neither the electors nor the people

.of

United States can be said

the

the

have had any-

to

thing more to do with the election than merely
to record their votes, in compliance with the

decision of the Convention, which Convention

had been nominated by them

to decide

be-

tween certain known and popular candidates.

Not being

able to agree

among themselves

favour of any one of those

members

candidates,

in

the

of the Convention took upon them-

selves to bring forward a

man whose name had

new one

;

a gentle-

never until then been

heard of in such a manner as in the

re-

motest degree to entitle him to anticipate such

an honour, but who was, nevertheless, at once
exalted to the

first

If the surprise

place in the Republic.

was great

the unanimity with which

not

less,

and was,

if

at this nomination,
it

was accepted was

possible,

surpassed

by

THE EXECUTIVE.

ch. xiv.]

the

favourable

225
that

anticipations

nounced throughout the Union,

were an-

as justified

by

the abilities, the character, and the decided

democratic opinions and principles of the
candidate for the Presidency.

The

new

democratic

party of every shade, from the most moderate
to the

him

most exalted, voted

for

him, and claimed

as the exponent of their principles.

And

as the democratic party

is

now without

comparison the strongest in the United States,
it

may be

asserted that no President ever en-

tered upon office possessed of a higher degree
of popularity, whether expressed in the
of votes he

had

number

received, or in the support

and

encouragement of the organs of public opinion.
It is

since

now but

Mr.

assailed,

little

Pierce's

more than eight months

election,

and he

is

now

by a very large proportion of his

former supporters, with a violence as great as
their former enthusiasm in his favour.

The reason is not disguised, or attempted to
The original candidates who were brought
be.
forward at the Convention were, as has been
stated, eight in

number, each representing some
L 3

THE EXECUTIVE.

226

[ch. xiv.

section of the democratic party throughout the

Union.

nominated

President by the Convention,

for

would,

supporters

Ins

had been

If any one of those eight

custom, have

felt

according

known

to

themselves entitled to a pre-

ference in appointments to

all

the offices at the

President's disposal, whether those of the principal

members

of his administration, or the

inferior ones in each State, within the gift of

The Convention

the President.

much

being so

divided, no one party was willing to give this

Accordingly,

victory to either of the others.

an entirely new candidate was proposed, previously

unnamed, and,

unthought

all,

aught that appeared,

and consequently

of,

pledged to any.

by

for

totally

un-

This gentleman was accepted

and made President of the United

States.

But having been
almost

unanimous in the

by the joint
of

his

Mr.
to

elected by

efforts

of

by a vote

all,

Convention,

the various

own party throughout

and

the

sections

country,

Pierce, has, since his election, proceeded

offer

his

patronage

to,

and

to

distri-

;

THE EXECUTIVE.

ch. xiv.]

bute

among,

it

various sections

persons

and

;

in

227

belonging to those

some

instances, not

feeling himself restricted, in the choice of per-

whom

sons

he deemed capable of

sponsible offices,
only,

he

is

limit

of

his

own

of

such

selection

posed

by

to

one section of

to

have gone beyond the

said

party

to

have led

persons.

to,

opinion

connections

For

a "vacillating policy" which

for

filling re-

the

in

this,

and

is

sup-

it

he has been denounced

influential portions of the democratic press

and he

is

told

;

with great vehemence, that

nothing but some bold stroke of policy can

him

restore

Now,

to his

former popularity.

in the fact last adverted to

great extent, the instruction which

a

lies, to

to

is

be

derived from a comparison of the system of
the United States with our own, in reference
to the

Executive power of the State.

If a President of the

ble

United States

is

capa-

and ambitious, he must necessarily wish

to*

be re-elected at the expiration of his four years
of office.

and

to

To be

re-elected he

be popular,

it is

must be popular

possible that

it

may be

THE EXECUTIVE.

228
necessary for

him

which, to say the
to,

if

with,

it

[ch. xiv.

adopt a line of policy

to

least,

may be "

disquieting"

does not actually produce collision

some of the other powers of the world

in

defence of their rights and interests.

In his inaugural address, delivered at

Wash-

ington in March, 1853, some of the principles

announced by Mr. Pierce,
to

be the basis of his foreign policy, were in

strict

accordance with

ultra-democratic

Mr. Pierce
is

as those that were

section

doctrines of the

the
of

his

supporters.

stated on that occasion,

" that

it

not to be disguised that the attitude of the

United States as a nation, and

its

position on

the globe, rendered the acquisition of certain

possessions not within the jurisdiction of the

United States eminently important for their
protection, if not in the future essential for the

preservation of the rights of

commerce and the

And

the principle was

peace of the world."

avowed
security,

as " fundamental,"

and repose of

this

that

" the rights,

Continent reject

the idea of interference or colonization on this
side of the

Ocean by any foreign power,

be-

THE EXECUTIVE.

ch. xiv.]

yond

its

22<)

present jurisdiction, as utterly in-

admissible."
It is possible,

and

it is

to be

hoped " for the

sake of the peace of the world" that

be probable,

that

doctrines so

may

their assertion

;

and

point to the

their plain

that neither Great Britain,

is,

in

It is impossible

They

to mistake their purport.

Cuba

menacing

not be found so easy of

being carried out into action.

acquisition of

may

it

meaning

nor France,

nor any of the other friendly States

inte-

rested in the present distribution of power in
the

West

Indies and along the eastern coast of

North America, would have a right

Cuba from

passing

to those of the

United

fere to prevent the island of

from the hands of Spain
States,

by cession, or purchase, or by any other

means within the power
to

to inter-

of the United States

bring about.
Fortunately,

the

despatch of

Russell, already referred

to,

Lord John

has placed on re-

cord the opinion of the Government of Great
Britain upon this subject.

And we may

ac-

cordingly rest secure that " the peace of the

THE EXECUTIVE.

230
world"

will

[ch. xiv.

be best maintained by a course of

action on the part of the people of the United
States, in accordance with the principles pro-

mulgated

in that

document.

These considerations are of the more importance, because a strong indication has been

given by the President of the United States to
act, if possible,

upon the policy enunciated

in

his address above-mentioned.

He

has appointed, as Minister of the United

States to the Court of

member

of the

Madrid, Mr. Soule, a

most advanced section of the

democratic party, and a gentleman

who has

taken a very conspicuous part in the agitation
in favour of

adding Cuba

the United States.
it

The

to the possessions of

proposition to acquire

from Spain by purchase has found much

favour with

that

party

;

and,

although the

suggestion has been once indignantly rejected

by the Spanish Government, the well-known
necessities of that

the

fact

of the

Government, coupled with
large

sum

of

sterling, or thereabouts (about

dollars),

having

accumulated

£6,000,000

30,000,000 of
from

surplus

THE EXECUTIVE.

ch. xiv.]

revenue, and

now

231

lying idle in the coffers of

the Treasury of the United States, have en-

couraged the revival of the proposal, which
there can be

endeavour

The

to

doubt that Mr. Soule

little

renew

will

Spanish Ministry.

to the

addresses received by Mr. Soule, from his

political friends,

on the eve of his leaving

York, and his answers

New

them, sufficiently

to

indicated what was expected of him, and the
object

to

which

his

endeavours

would be

of

therefore,

directed.

The

" bold

stroke

policy,"

which may restore the popularity of the President and reunite his party,

may

possibly be

soon revealed to the world.

Happily

the

for

the

repose,

credit of this country,

dignity,

Executive

the

is

the
ex-

posed to no such temptations as have been

above described.

Even the most popular mi-

nister, enjoying the

of Parliament,
tional

most unbounded confidence

and wielding

powers entrusted

to

all

the constitu-

him by the Crown,

could take no more effectual course to destroy
his popularity in a day, than to propose, on the

THE EXECUTIVE.

232
one hand,

to

still

more an enfeebled

and, on the other, to deny the right of all

ally,

other powers,

an

weaken

[ch. xnr.

who would, be

That the Crown

act, to interfere.

have recourse

nister should

affected by such

or a mi-

such a line of

to

policy with the view to acquire popularity, or
to restore

an impossible supposition in

is

it,

this country.

In relation
in

above subject, the manner

to the

which the power

make

to

ranged by the Constitution

some

States, is of

2nd

sect,

committed

of
to

the

treaties is ar-

of the

significance.

2nd

article,

United

This (by the
clause 2)

is

the President, " by and with the

consent of two-thirds of the senators present."

Upon

this

Mr.

Justice Story remarks that

" Accurate knowledge of foreign politics, a steady and

systematic adherence to the same views, nice and uniform
sensibility to national character, as well as secrecy, decision,

and despatch, are required

power

to

make

And,
fairly

for a

due execution of the

treaties."*

accordingly, as the Senate

presumed

"may

be

at all times to contain a very

*

§

1516.

THE EXECUTIVE.

ch. xrv.]

233

large portion of talents, experience, political

wisdom, and sincere patriotism,

and a deep devotion

liberality,

a

spirit

of

to all the sub-

stantial interests of the country," the constitu-

check of requiring two- thirds of that

tional

body

to

sufficient

guarantee against any wanton sacrifice

private

of

"a

confirm a treaty will be found to be

rights,

or any betrayal of public

privileges." #

Mr.
"

Justice Story further thinks that

However

safe it

executive magistrate
to

him the

entire

utterly unsafe

may
is

be in Governments where the

an hereditary monarch, to commit

power of making

and improper

treaties, it

to entrust that

executive magistrate chosen for four years.

remarked, and

would be

power
It has

to

an

been

unquestionably true, that an hereditary

is

monarch, though often the oppressor of his people,! has personally too

much

at stake in the

Government

to

be in any

material danger of corruption by foreign powers, so as to

surrender any important rights or interests.

But a man

raised from a private station to the rank of chief magistrate
for a short period,

having but a slender and moderate

tune, and no very deep stake in the society,

for-

might some-

times be under temptations to sacrifice duty to interest,

*

§

1513.

t Mr. Justice Story probably alluded
history, a century

and a half

old, or to

monarchies of the continent of Europe.

to events in English

some of the absolute

THE EXECUTIVE.

234
which

would require great virtue

it

[ch. xiv.

to withstand.

ambitious, he might be tempted to seek his

ment by the

aid of a foreign power,

and use the

If avaricious, he

negotiation for the purpose.

If

own aggrandisefield of

might make

his treachery to his constituents a vendible article at

enormous

Although

price.

such

occurrences

ordinarily to be expected, yet the history of

does not warrant that exalted opinion of

which would make
delicate interests

it

human conduct
human nature

wise in a nation to commit

and momentous concerns

strained disposal of a single magistrate.
to interpose checks

an
not

are

its

most

to the unre-

It is far

upon the actual exercise

more wise

of the power,

than remedies to redress and punish an abuse of it."*

The

vast patronage in the hands

President

manner

of

United

the

States,

of

the

and the

in which, immediately after each pre-

sidential election,

it

has, according to recent

usage, been exercised, are circumstances which
create

some of the most marked

distinctions

between the position and power of the Pre-

and that of

sident,

the

Executive of

this

Constitution

last

country.

By

the

clause

of

quoted,t the President
nate,

the
is

empowered

to

nomi-

and by and with the consent of the

Senate to appoint ambassadors, other public
*

§ 1515.

f Article

2,

section 2.


THE EXECUTIVE.

ch. xiv.]

235

ministers and consuls, judges of the supreme

and

court,

all

States whose

provided

Mr.

other

officers

the United

of

appointments are not otherwise

for.

Justice Story thus describes the extent

of the patronage assigned to the President
"

The power

of Congress has

been exerted

:

a great

to

extent, under this clause, in favour of the executive depart-

The President

ment.

is

by law invested, either solely or
military

and

civil officers,

and

administration

of

with the Senate, with the appointment of
naval

officers,

and of the most important

those

especially

connected with the

all

justice, the collection of the revenue, and the supplies and

expenditure of the nation.

The

the

courts of

possess the narrow prerogative of appointing their

Union

own clerk

The heads

and reporter, without further patronage.

of

departments are in like manner generally entitled to
the appointment of the clerks in their respective

But the

great anomaly of the system

is

patronage of the Postmaster-general, who

is

offices.

the enormous
invested with

the sole and exclusive authority to appoint and remove
all

deputy-postmasters;

and whose power and influence

have thus, by slow degrees, accumulated, until
haps, not too

much

to say that it rivals, if

it

it

is,

per-

does not

exceed in value and extent, that of the President himself."*

*

§

1536.

The Postmaster-general, in his Report of 1st
states that "the whole number of post offices

December, 1853,

in the United States at that date was 22,688.

THE EXECUTIVE.

236

And

xiv.

with regard to the " inferior offices,"

the patronage of which

Mr.

President,

exclusively in the

is

Story

Justice

"probably include

they

[cm

ninety-nine

every hundred of the lucrative

that

asserts

out

offices

of

the

of

Government."
It

was argued, when the Constitution was

under discussion, that the Executive would be
materially

weakened by being compelled

to

share with the Senate the power of appoint-

ment

to the principal offices

;

but the contrary

apprehension, that of the Executive becoming
too powerful if possessed exclusively of the whole

patronage of the Government, prevailed.
with regard to the inferior

offices, it

And

was urged

that a President, acting under the eye of the
public,

would not venture

age subservient
distribute

of the

it

to

to

make

his patron-

party interests, but would

with a view to the highest purposes

On

public good.

Justice Story observes

:

#

this

subject

Mr.

" Perhaps the duties of the President, in the discharge
of this

most

delicate

and important duty of
*

§ 1533.

his office, were

;

THE EXECUTIVE.

ch. xiv.]

never better

summed up than

in the following language of

a distinguished commentator.*

pointment of subordinate

'

A proper

and character of

and

ap-

It is a duty of the President

to acquire, as far as possible, an intimate

capacities

selection

one of the strongest

officers is

marks of a powerful mind.

237

knowledge

his fellow-citizens

;

of the

to disregard

the importunities of friends, the hints and menaces of

enemies, the bias of party, and the hope of popularity.

The
but

latter is
its

sometimes the refuge of feeble-minded

gleam

is

men

transient, if it is obtained by a dereliction

of honest duty and sound discretion.

Popular favour

is

best secured by carefully ascertaining, and strictly pursu-

The President him-

ing the true interests of the people.
self is

elected on the supposition that

he

the most

is

capable citizen to understand and promote those interests

and in every appointment he ought
executing a public

of the

trust

;

to consider himself as

same nature.

Neither

should the fear of giving offence to the public, or pain to
the individual, deter

him from the immediate

exercise of

his power of removal, on proof of incapacity or infidelity

The

in the subordinate officer.
necessity,

may be

surprised,

and

public,

uninformed of the

at first dissatisfied

;

but

public approbation ultimately accompanies the fearless and

upright discharge of duty.'

The

"

extent of the patronage vested in the

President being

paragraph,

the

as

described in the former

manner

in

which

it

ercised, especially in reference to the
* Rawle on the Constitution,

c.

14, p, 164.

is

ex-

removal


THE EXECUTIVE.

238

[ch. xiv.

of persons appointed by a preceding Presi-

becomes a question of tbe most serious

dent,

import.

The

question whether the consent of the

Senate was necessary to the removal of a person from office as well as to his appointment

was warmly debated

thereto,

at the time of the

The

framing of the Constitution.

adopted

Federalist

the

removal from

office

writers of

could be

lawfully

without the concurrence of the Senate.

maintenance of

no

view that

the

made
"

The

this doctrine with great earn-

by the Federalist," says Mr. Justice

estness
Story,
tk

Had a most

material tendency to quiet the just alarms of

the overwhelming influence and arbitrary exercise of this
prerogative of the Executive, which might prove fatal to

the personal independence and freedom of opinion of public
officers,

Indeed

as well as to the public liberties of the country.
it

is

utterly impossible not to feel that if this

unlimited power of removal does exist,

it

may be made,

in

the hands of a bold and designing man, of high ambition

and feeble

principles,

an instrument of the worst oppres-

sion and most vindictive vengeance.

Even

in monarchies,

while the councils of State are subject to perpetual fluctuations

and changes, the ordinary

officers of the

Government

ch. xiv.]

THE EXECUTIVE.

.

9gQ

are permitted to remain in the silent possession of their

undisturbed by the policy or the passions of the

offices,

But

favourites of the court.

in a republic,

where freedom

of opinion and action are guaranteed by the very first

Government,

principles of the
first

if

a successful party

elevate their candidate to office,

may

and then make him

the instrument of their resentments or their mercenary

bargains

if

;

men may

be made spies upon the actions of

their neighbours to displace

them from

office

or if fawn-

;

ing sycophants upon the popular leader of the day

may

gain his patronage, to the exclusion of worthier and abler

men

it is

most manifest that elections will be corrupted at

their very source,

and those who seek

office will

motive to delude and deceive the people.
therefore, without reason that, in the

already alluded

to, it

have every

It

was not,

animated discussions

was urged that the power of removal

was incident to the power of appointment; that it would be a
most unjustifiable construction of the Constitution, and of its
implied powers to hold otherwise
in the Executive was in its
arbitrary,

;

that such a prerogative

own nature monarchical and

and eminently dangerous

to the best interests as

well as the liberties of the country.

It

would convert

all

the officers of the country into the mere tools and creatures
of the President.

A

vidual would deter

men

dependence so servile on one
of high and honourable

from engaging in the public
expectation, such

men

would be reduced

to

service.

And

if,

should be brought into

indi-

minds

contrary to
office,

they

the necessity of sacrificing every

principle of independence to the will of the chief magistrate, or of

exposing themselves to the disgrace of being

removed from

office,

and

that, too, at a

time when it might

THE EXECUTIVE.

240

no longer be in their power
.

.

.

"

.

The language

to

[ch. xiv.

engage in other pursuits."

of the Federalist

that the

is,

consent of the Senate would be necessary to displace as

A

well as to appoint*

change in the chief magistrate,

therefore, could not occasion so violent or so general a revolution in the officers of the

pected

man

if

he were the

Government

as might be ex-

sole disposer of offices.

Where

a

in any station had given satisfactory evidence of his

fitness for

it,

a

new President would be

restrained from

attempting a change in favour of a person more agreeable
to

him, by the apprehension that the discountenance of the

Senate might frustrate the attempt, and bring some degree
of discredit

upon himself. "

.

.

On

"

.

.

the other

hand, those who, after the adoption of the Constitution,
held the doctrine (for before that period
to

have been avowed by any of

urged by

its

never appears

it

its friends,

although

opponents as a reason for rejecting

it

it),

was
that

the power of removal belonged to the President, argued that
it

resulted from the nature of the power, and was indis-

pensable for a due execution of the laws, and a regular
administration of the public affairs."

.

.

.

"Besides,

it

was argued, that the danger that a President would remove
good

men from

was wholly imaginary.

office

by the splendour attached

to the character of

It

was not

a particular

President like Washington that such an opinion was to be
maintained.

The man

It was founded

office.

in whose favour the majority of the people of the

United States would unite

had every probability

He

on the structure of the

must be presumed
*

to elect

him

to

such an

office,

at least in favour of his principles.
to possess integrity, independence,

Federalist, No. 77.

THE EXECUTIVE.

ch. xiv.]

and high

talents.

241

It would be impossible that he should

abuse the patronage of the Government, or his power of
removal, to the base purposes of gratifying a party, or of

ministering to his
right

and excellent

The

public

own resentments,
officers, for

or of displacing up-

a mere difference of opinion.

odium which would inevitably attach

conduct would be a perfect security against

made from such

in truth, removals

view

to

bestow the

offices

would be an impeachable

such

to

And,

it.

motives, or with a

upon dependents or favourites
offence.

One'* of the

most

dis-

tinguished framers of the Constitution (Mr. Madison), on
that occasion, after having expressed his opinion decidedly
in favour of the existence of the

Executive, added,

peachable by the

In the

'

House

of

first

power of removal
place

he

in the

be im-

will

Representatives before

Senate for such an act of mal -administration

;

the

contend

for I

that the wanton removal of meritorious officers would subject

him

to

impeachment, and removal from his high trust.'"*

That the event has proved
and

trary to the lofty
of the framers

of

presently shown.

the

entirely

con-

patriotic anticipations

Constitution

will

be

It is first necessary to notice

the remarkable fact, that the decision of Congress, admitting
o

ci

this exclusive right
o

of dis-

missal to be in the President, was only carried

by a bare majority.f
* Story, §§ 1539, 1540.
+ Senate Journal, July

18, 1789, p. 42.

Story, § 1543.

M


THE EXECUTIVE.

242

Mr

[ch. xiv.

Justice Story thus records

it

:

" After a most animated discussion, the

taken in the House

vote

of Representatives was

power of removal in the President, without any co-

of the

operation of the Senate, by the vote of thirty-four

mem-

In the Senate the clause of the

bers against twenty.
bill

finally-

affirmative

affirming the power, was carried by the casting vote

of the vice-president.

" That the final decision of this question so

made was

greatly influenced by the exalted character of the Presi-

dent then in

office,

was asserted

at the time,

and has

Yet the doctrine was opposed, as

always been believed.

well as supported, by the highest talents and patriotism of

The

the country.
cision

;

and

public, however, acquiesced in the de-

it constitutes,

perhaps, the most extraordinary-

case in the history of the Government, of a power conferred by implication on the Executive by the assent of a

bare majority of Congress."*

This power remained
questioned

;

and " even

for

some time

the

most

un-

zealous

advocates of State rights seem to have slum-

bered

over

this

vast

reach

Nor," says Mr. Justice Story, "
acquiescence and

of

authority.*

is this

general

silence without a satisfactory

explanation."
" Until a very recent period the power had been exercised in few cases, and generally in such as led to their

* §§ 1542, 1543.

THE EXECUTIVE.

ch. xiv.]

own

243

During the administration

vindication.

of President

Washington few removals were made, and none without

Few

cause.

Adams.
greatly

were made in that of the

President

first

In that of President Jefferson the
enlarged

but yet

;

it

was

circle

was kept within narrow

bounds, and with an express disclaimer of the right to re-

move

for differences of opinion, or otherwise

clear public good.

quent Presidents,

than for some

In the administration of the subseMadison,

Munroe, and John Quincy

Adams, a general moderation and forbearance were

and without

cised, with the approbation of the country,

disturbing the
" Since

the

harmony

exer-

of the system.

into office of President

induction

Jack-

son (4th March, 1829), an opposite course has been pur-

sued
office

;

and a system of removals and new appointments
has been pursued so extensively, that

a very large proportion of
profit in the civil

matter of

fact;

all

it

the offices of honour and

departments of the country.

This

and beyond the statement of the

attention,

of

is

a

fact, it is

not the intention of the commentator to proceed.
extraordinary change

to

has reached

This

system has awakened general

and brought back the whole controversy, with

regard to the executive power

of removal, to

a severe

scrutiny." *

The

facts

given by Mr. Justice Story, show-

ing the extent of the removals from

President Jackson, are as follows
" In proof of this statement, lest

it

office

by

:

should be ques-

* §§ 1542, 1543.

M

2

f

THE EXECUTIVE.

244
tioned,

is

it

fessedly

proper to say, that a

[ch. xiv.

removals (con-

list of

between the 4th of March, 1829,

imperfect),

when President Jackson came

into office,

March, 1830, has been published, by which

and the 4th of
it

appears, that,

during that period, there were removed eight persons in
the diplomatic corps

ments
suls,

;

;

thirty-six in the executive depart-

and in the other

marshals,

district

civil

departments, including con-

attorneys,

and other

collectors

the customs, registers and receivers, one hun-

officers of

dred and ninety-nine persons.
proportion

very large

These
the

of all

include a

officers

most lucrative

offices

under the national Government. Besides these, there were
removals in the post-office department, during the same
period, of four

hundred and ninety-one persons.*

statement will be found in the National

27th September,
except postmasters

been denied

;

and I am not aware that

to be correct. It is impossible for

1829, the aggregate of all the removals
of this

of

it

me

has ever
to

vouch

It is not probable that from the

organisation of the Government,

one-third

Intelligence?-

1832, with the names of the parties,

for its entire accuracy.
first

This

number.

in 1789, down
made amounted

to

to

In President Washington's

administration of eight years,

only nine removals took

place."

President Tyler, in his address to Congress
of 1811, declared that he would
* See

Mr.

Postmaster-general Barry's

March, 1830.
+ Note

to § 1543.

remove no one
Report of

24th

THE EXECUTIVE.

ch. xiv.]

from

2i<5

except for incapacity, misconduct,

office

or interference with politics

and

;

in 184-2

he

proposed* to " regulate and restrain" the power
of the President " to

power

since that

remove public

officers

;

acts as a stimulus to office-

holders and office-hunters at elections."

Whig

Presidents belonging to the

The

party ap-

pear generally to have discouraged this practice

but in the seventeen years that have

;

elapsed since the end of President Jackson's
administration,

quent
the

" wholesale removals,"

now commonly

as they are

cording

these

common

to

occurrence.

called,

report,

The

been

public

United States speak of

have,
of
prints

offices

acfre-

of

" by the

hundred" having been given away by the
present President, in the short period since
his

election

;

and their

complaint

is,

not

of the displacing of the previous holders, but of
their places not having been supplied from the

main body

of the partisans of the President,

who

loudly assert the injustice done to them,

and

visit

it

upon

the

President, with

the

strongest accusations of imbecility in his per-

sonal character and public policy.

THE EXECUTIVE.

246

The

[ch. xiv.

injury done to the public service by

this

system can

the

point which

But

admit of no dispute.

and

of general concern

is

a review of the working- of the

interest, in

Constitution

United

the

of

States,

the

is,

strange and flagrant departure, exhibited by

from that which was regarded

this practice,

bv the whole body of the enlightened and
patriotic

framers

of the

Constitution, as so

fundamental a principle, and
the

munity,

remedy

they

that
for

contrary to
the

and even

interests

it,

all

if it

so essential to

com-

liberties of the

could

no other

conceive

should by possibility, and

their expectations, exist, than

impeachment

of the President,

who

should

so far violate the spirit of their institutions as
to

lend himself to

* The practice
is

is

it.*

receiving an illustration at present which

exciting some notice in the United States.

The President

has dismissed Mr. G. C. Bronson (formerly a judge, and
usually addressed as Judge Bronson) from his
lector of

opponent.

New

office

still

of Col-

York, on the ground of his being a political

Judge Bronson, in a very temperate

dressed to the " Washington Sentinel," and dated

letter

New

ad-

York,

October 26, 1853, denies the imputation, and states that he
does not entertain, and never did entertain the opinions im-

puted to him by Mr. Secretary Davis and the President.

The

THE EXECUTIVE.

ch. xiv.]

Democratic party, however, support the President.
lowing announcement
"

is

247
The

an indication of their sentiments

fol:

The Democrats op Massachusetts, on Collector Bronson's

Removal.
" Boston, Oct. 28, 1853.

"

At the Democratic Convention of Plymouth County

terday,

New

it

yes-

was resolved that the removal of the Collector of

York, when he attempted to disregard the principles of

the union of the Democratic party, deserves, and will receive,
the support of

all

true friends of Democratic principles."

THE JUDICIARY.

248

[ch. xv.

CHAPTER XV.
THE JUDICIARY.

The

Constitution of the United States being"

a written one, and defining, in certain terms,

the rights and duties of
it is

all

who

live

under

it,

a matter of necessity that there should be

a power, lodged

somewhere, of interpreting

those terms, and declaring whether or not in

any particular case they have been violated.

This power has been placed, by the Constitution, in the judiciary of the

This body,

therefore,

authority which cannot
lish

is

fail

United

to

appear

to

Eng-

eyes to be of a very extraordinary cha-

racter, namely, that of declaring void

none

States.

invested with an

effect,

and of

an Act solemnly passed by the

THE JUDICIARY.

ch. xv.]

should

Legislature,

249

Act

that

be,

in

their

opinion, at variance with the Constitution.*

Our system

of government,

which

is

founded

and partly on Acts of Parlia-

partly on usage

ment, neither knows, nor requires, nor would

any authority extraneous

tolerate,

the Legislature,

when

that of

to

the will of the Legisla-

ture has been once declared by a formal Act.

The

decision of Parliament becomes the su-

preme law

and

obey,

to

of the land, which all are

matured

which

to

result

of

all

public

submit,

bound
as

the

and of

opinion,

the deliberations of the representatives of the

whole community, in both Houses of Parlia-

We

ment.

entrust to Parliament the power

of altering the laws and modifying our insti-

from time

tutions
arise,

to

time,

and the demands of the day may require;

and we so entrust

it,

in the confidence

enlightened public opinion will at
*

may

as occasion

" It is

all

an important principle, and never to be

that the judiciary in this country
co-ordinate,

is

times be
lost sight of,

not a subordinate, but a

branch of the Government."

Justice Patterson.

that

—Judgment

Dallas's Reports, vol.

ii.

p.

of Mr.

Phila-

309.

delphia, 1798.

M

3

THE JUDICIARY.

250
sufficient to

or to check

[ch. xv.

prevent the abuse of that power,

and correct

it.

But the system of government of the United
States having, unlike ours, been strictly defined
in a written

document, and formally assented

being submitted

to the suffrages of the

electors throughout the

whole of the States,

to, after

and having thus been recognised

preme Law of the land,"
might be

made

all

contrary

as

" the Su-

other laws that
to

it,

either

by

Congress or by any one of the States, must
necessarily be void

;

and there must be some

means of deciding what laws are of that
nature,

and thereupon declaring them void

cordingly.

Considering also the extent of the

Union, and that

it is

composed of an assem-

blage of republics, each having
cature,

it

collisions

ac-

was

its

own

judi-

essential, in order to prevent

between the laws and powers of the

Union and those of the

States, that there should

be "some superintending judiciary establishment," without which there could be no uni-

form administration or interpretation of the
laws of the Union.


THE JUDICIARY.

ch. xv.]

Mr.

Justice Story places the matter in the

following point of view
"

As

251

the Constitution

is

:

the supreme law of the land, in

a conflict between that and the laws either of Congress or
of the States,

it

becomes the duty of the judiciary

that only which

is

of

paramount

to follow

This results

obligation.

from the very theory of a republican form of government,

and Executive

for otherwise the acts of the Legislature

would in

become supreme and

effect

uncontrollable, not-

withstanding any prohibitions or limitations contained in
the Constitution
cally

;

and usurpations of the most unequivo-

dangerous character might be assumed, without any

remedy within the reach

of the citizens.

The people

would thus be at the mercy of their rulers in the State

and National

Governments, and an omnipotence would

practically exist like that claimed for the British Parlia-

The

ment.

universal sense of America has decided that,

in the last resort, the judiciary
stitutionality of the acts

Governments, so

far as

must decide upon the con-

and laws of the general and State
they are capable of being made the

subject of judicial controversy.

It follows, that

when they

are subjected to the cognisance of the judiciary, its

ments must be conclusive,

for otherwise they

judg-

may be

dis-

regarded, and the acts of the Legislature and Executive

enjoy a secure and irresistible triumph.
at large, therefore,
able,

and ought

"The

to

such an institution

is

To the people
peculiarly valu-

be eminently cherished by them.

framers of the Constitution, having these great

principles in view, adopted two fundamental

rules

with


THE JUDICIARY.

£52
entire unanimity

be established
co extensive

that a national judiciary ought to

first,

secondly, that

;

[ch. xv.

it

ought

to possess

powers

department.

the legislative

with those of

Indeed, the latter necessarily flowed from the former, and

was

treated,

and must always be treated [under the system

United

of the

But these

an axiom of

States], as

political

government.

provisions alone would not be sufficient to en-

sure a complete administration of public justice, or to give

permanency

The

to the Republic.

judiciary

organised as to carry into complete effect
of its establishment.

and firmness.

possess the power and the

enforce execution of

its

must be so
the purposes

must possess wisdom, learning,

It

integrity, independence,

all

means

to

It

must

at once

check usurpation, and

judgments."*

Such bein^ the motives which actuated the
framers

the

of

Constitution

of

States in assigning to the judiciary

the

United

its

powers,

and such being the duties expected of them,
it is

next to be seen "

are

provided for

all

how

far

these

adequate means
important

pur-

poses/'

The

section of the third Article of the

first

Constitution
"

is

as follows

The judicial power

in one

gress

supreme

may from

court,

:

of the United States shall be vested

and in such

inferior courts as

time to time ordain and establish.
* §§ 1576, 1577.

Con-

The


THE

ch. xv.]

253

JTTDICIAKY.

judges, both of the supreme and inferior courts, shall hold
their offices during good behaviour,

times, receive for

and

shall, at stated

which

services a compensation

their

shall not be diminished during their continuance in office."

And by
tion
"

and

%

section

thus defined

is

The

clause

:

power shall extend

judicial

equity, arising

United States, and

their jurisdic-

1,

to all cases, in

treaties

under their authority

;

made, or which shall be made,

to all cases affecting

other public ministers, and consuls;
miralty and maritime

jurisdiction;

between two or more States
;

ambassadors,

to all cases of ad-

controversies

to

which the United States shall be a party

of another State

law

under the Constitution, the laws of the

;

to

to controversies

between a State and citizens

;

between citizens of different States

;

be-

tween citizens of the same State, claiming lands under

and between a

grants of different States;

State, or the

and foreign

States, citizens, or subjects."*

The Supreme Court

consists of seven judges,

citizens thereof,

and by clause 2 of the second
with

invested

original

section, they are

jurisdiction

" in

all

cases affecting ambassadors, other public mi* This clause was subsequently altered by Article 11 of the

Amendments
judicial

extend

of the Constitution,

which

power of the United States
to

any

suit in

is

as follows

:

—" The

shall not be construed to

law or equity, commenced or prosecuted

against one of the United States by citizens of another State,
or by citizens or subjects of

any foreign State."

THE JUDICIARY.

254

[ch. xv.

and consuls, and those

nisters,

which a

in

State shall be party," and "in all the other
cases before mentioned, with appellate juris-

with

such

exceptions

as

Congress

may think proper to make.
The inferior courts of the United

States, to

diction,"

which the

section

first

are

refers,

Circuit

Courts, of which the judges of the Supreme

Court are also the judges (the whole Union
being divided into circuits), and the District
Courts, one at least of which

is

established in

every State.

These two courts have

original jurisdiction

in the cases specified in the
also, as

well as the

the

State

courts

;

article,

Supreme Court,

jurisdiction in respect

judicial cognisance

above

to

cases

and

appellate

within their

which may have arisen
the

obvious

in

motive for

which was, " the importance, and even the
necessity, of uniformity of decisions through-

out the whole of the United States upon
subjects

within

the

all

purview of the Consti-

tution."*
* Story, §§ 1590-1597.

;

THE JUDICIARY.

ch. xv.]

Whether

was

it

in

255

accordance

Constitution, that the judges of the

with

the

Supreme

Court should also be called upon

to fulfil the

duties of judges

courts,

of the

circuit

was

questioned in an elaborate memorial presented

Washington, within a year after

to President

Constitution

the

was

established,

by Chief

and the other judges of the Su-

Justice Jay

But no change was made

preme Court.

and when the question was raised in 1803
before the

Supreme Court,

it

was decided that

the practice up to that time should be taken
to

have decided the point in favour of

being" within

the intention

its

of the Constitu-

tion.*

The mode
cial offices

of appointing to these high judi-

obviously a matter of the

is

first

importance, in relation to the qualifications,

and

to the

independence, of the functionaries

invested with them.
* Note

to § 1579.

The two great

cases

which have decided

the extent of the appellate jurisdiction of the United States

Courts are Martin

Cohens

v.

v.

Hunter,

1

Wheatstone's Reports, 304

Virginia, 6 Wheat., 413 to 423.

;

and

THE JUDICIARY.

256

The

President

is,

by

[cm. xv.

the

Constitution,*

authorised to nominate, and, by and with the
advice and consent of the Senate, to appoint
the judges of the

Supreme Court.

The appointment

of the judges of the in-

ferior courts is not expressly provided for

by

the Constitution, and Congress have passed

no Act

to regulate

it.

It has, therefore,

ac-

cording to Mr. Justice Story, been considered

" silently to belong to the President, under
the clause of the Constitution authorising
to

appoint

all

whose

States

other

of the

officers

him

United

appointments are not therein

otherwise provided for."f

Not

inferior in the importance of its results

upon the weight and character of the judicial
body,
offices

is
;

the tenure by which they hold their

and there

is

no point upon which the

able commentators on the Constitution

Kent,

Rawle,

and

more pains than

Tucker,

this,

*

Article

t

§ 1599.

2,

have

in their

section

Story,

bestowed

endeavours

2, c. 2.

to

THE JUDICIARY.

ch. xv.]

257

impress upon their fellow-citizens the convictions

which they themselves so deeply

felt,

that a secure and independent tenure of the
judicial office

one of the cardinal points on

is

which their Constitution, their

liberties,

even the individual safety of

and property,

must always

in a great degree depend.

With regard
judges

to the tenure of office of the

Supreme Court there

the

of

They

question.

life

and

with the Senate.

no

appointed during good

are

behaviour, by the

is

President,

The

in

conjunction

practice has been in

accordance with the hitherto-accepted theory,
namely, that they cannot be removed, except
after conviction

upon impeachment

for miscon-

duct.

But

judges

the

of

the

inferior

courts,

although also appointed during good behaviour (which the law of the United

mean

interprets to

for

life,

in accordance with

the decision of Chief Justice
subject,

which

is

States

Holt upon the

the foundation of the inter-

pretation of these words in our courts)* do not
*

1

Shower's Reports, 426. 506. 536.


THE JUDICIARY.

258

stand, in regard to the

[ch. xv.

permanence of

their

appointments, upon the same secure footing of

precedent as their brethren of the Supreme
Court.*

Upon

this subject,

ments as follows

Mr. Justice Story com-

:

"Unfortunately, a measure was adopted in 1802, under
the auspices of President Jefferson, which,
tionality can be

dust the independence of

tenure of their

if its

constitu-

successfully vindicated, prostrates in the

office

judges, both as to the

all inferior

and their compensation

for services,

and leaves the Constitution a miserable and vain delusion.
In the year 1801, Congress passed an Act reorganising
the judiciary, and authorising the appointment of sixteen

new

judges,

courts

of

with

the

suitable

United

created by the Act.

salaries,

States

Under

in

this

to

the

hold the circuit
different

Act the

circuits

circuit judges

received their appointments and performed the duties of
their offices until the year 1802,

when the

courts esta-

blished by the Act were abolished by a general repeal of
it

by Congress, without in the slightest manner providing

for the

payment

of the salaries of the judges, or for

continuation of their
therefore,

is,

The

offices.

(so far as it is

may

at

is

any
Act,

a precedent,) that, notwith-

standing the constitutional tenure of
of the inferior courts

result of this

office of the

judges

during good behaviour, Congress

any time, by a mere

act of legislation,

* Story, §§ 1600-1627.

deprive

THE JUDICIAKY.

ch. xv.]

them

of their offices at pleasure,

their whole title to their salaries.

more than any ingenuity
to

and with

it

How this

can be recon-

take away

terms or the intent of the Constitution

ciled with the

been able

259

The system

demonstrate.

is

argument has ever as yet

of

because

fell

it

was

unpopular with those who were then in possession of power;

and the victims have hitherto remained without any indem-

Government.

nity from the justice of the

"Upon

this subject a learned

commentator* has spoken

with a manliness and freedom worthy of himself and of

To

his country.

those

who

tation of the Constitution

anxious to guard
to

the States

;

it

are alive to the just interpre-

—those who, on the one

side, are

against usurpations of power injurious

and those who, on the other

departments

to the authority of the others

are

side,

equally anxious to prevent a prostration of any of

its

great

—the language

can never be unseasonable, either for admonition or instruction, to

opinion

warn us of the

may be persuaded

facility

to yield

with which public

up some of the barriers

of the Constitution under temporary influences

and

;

to

teach us the duty of an unsleeping vigilance to protect that

branch which, though weak in

its

powers,

is

yet the guar-

dian of the rights and liberties of the people.
supposed,' says the learned author,

'

'

It

was

that there could not

be a doubt that those tribunals in which justice

is to

be

dispensed according to the Constitution and laws of the
confederacy

— in which

decided upon

life,

— on which

liberty,

and property are

* Tucker's Blackstone's Commentaries,
3 App. 22-25.

to

be

questions might arise as to the

vol.

i.

App. 360

;

THE JUDICIARY.

260

[ch. xv.

«

constitutional

power of the Executive, or the constitutional

obligations of an Act of the Legislature,

and in the decision

might find themselves constrained by

of which the judges

duty and by their oaths to pronounce against the authority
of either

—should

pendent upon the

be stable and permanent, and not dewill of the

both, for their existence

;

Executive or Legislature, or

and that without

permanence, the tenure of

office

this degree of

during good behaviour

could not secure to that department the necessary firmness
to

meet unshaken every question, and

and

to decide as justice

the Constitution should dictate, without

consequences.

which

it

regard to

These considerations induced an opinion,

was presumed was general,

if

not universal, that

the power vested in Congress to erect, from time to time,
tribunals inferior to the

them

Supreme Court, did not authorise
Being

at pleasure to demolish them.

built

upon the

rock of the Constitution, their foundations were supposed
to partake of its

permanency, and

to be equally incapable

of being shaken by the other branches of the

But a

It has

prevailed.

and

Government.

different construction of the Constitution has lately

been determined that a power

establish from time to time, carries with

tionary power to discontinue or demolish

the tenure of

office

station,

a discre-

that although

be " during good behaviour," this does

not prevent the separation of the
putting down the

;

to ordain

it

office

from the

officer,

by

office,

but only secures to the officer his

upon the terms

of good behaviour, so long as the

office itself

remains.

this interpretation

fundamental

Painful, indeed,

seems calculated

pillars of free

is

the remark, that

to subvert

Governments, and

the foundation of one of the

one of the

to

have laid

most dangerous

political


THE JUDICIARY.

ch. xv.]

261

schisms that has ever appeared in the United States of

America."'*

And

in another passage, representing the

illegality of the

Mr.

above Act of the Legislature,

Justice Story rightly insists that

" Until the people have by
tive act annulled or

binding upon
vidually

;

some solemn and

authorita-

changed the established form,

themselves

collectively,

as well

as

and no presumption, or even knowledge

it

is

indi-

of their

sentiments, can warrant their representatives in a departure

from

it

It

prior to such an act."

cannot be doubted that the tendency of

such a step on the part of the Legislature, in
reference to the judges of the inferior courts
of the United States,

must have been

to loosen

the feeling of permanency with regard also to
the

tenure

by the judges of

of office

the

Supreme Court; and, accordingly, Mr. Justice Story adverts to

the

fact that President

Jefferson,
" During the latter years of his

the time

when he became President

life,

and indeed from

of the United States,

was a most strenuous advocate of the plan
judges hold their

offices for

* Story,

of

making the

a limited term of years only.
§ 1634.


262

He

THE JUDICIARY.

t

[ch. xv.

proposed that their appointments should be for four or

six years, renewable

He

by the President and the Senate."*

also observes that

" Surely

it will

not be pretended that any Constitution

the American people could ever contemplate

adapted to

the executive and legislative departments of the Govern-

ment

as the ultimate depositaries of the

power

to interpret

the Constitution, or as the ultimate representatives of the
will of the people, to

change

it

at pleasure.

If,

then, the

judges were appointed for two, or four, or six years, instead
of during good behaviour,

the only security which

the

people would have for a due administration of public justice,

and a firm support of the Constitution, would

be, that,

being dependent upon the Executive for their appointment
during their brief tenure of

office,

they might, and would,

represent more fully, for the time being, the constitutional
opinion of each successive Executive, and thus carry into
effect

his

wise, or

system of government.

more

more

safe,

for the

Would

this be

tion, or the preservation of the liberties of the people,

the present system?
fact,

Would

more

permanence of the Constithan

the judiciary then be, in

an independent, co-ordinate department?

Would

it

protect the people against an ambitious or corrupt Executive, or restrain

the Legislature from acts of unconstitu-

tional authority ?"f

The

opinions of President Jefferson, in 1801,

were revived in 1829 by President Jackson,
who, in his inaugural address for that year,
*

§ 1618, note.

t

§

1618.

THE JUDICIARY.

ch. xv.]

263

recommends the general extension of the law
limits appointments for four years

which

recommendation which he

repeated

;

in

a
his

address of 1832.

The

adoption of the principle of appointing

their judges for terms of years, in

some States

by the electoral body, in others by the Legislature, which, as I shall presently show, has of
late years

made

considerable progress

the individual States,

makes

it

among

desirable that I

should illustrate the opinions of the framers of
the Constitution, and of other learned persons

upon

this

tracts

;

parture

particular point, by a few

more

especially as

the

much argument and

ceptible

United

"Upon

effects

to sustain

with

eloquence, must in

upon the judiciary of

that

little

the

States.
this

subject,"

says Mr. Justice

Federalist' has spoken with so

of

distin-

probability produce by degrees very per-

all

'

ex-

growing de-

from principles which those

guished persons endeavoured
so

more

can be added to

its

much

Story,

"the

clearness and force,

reasoning.

good behaviour, for the continuance in

The standard
office

of the

judicial magistracy, is certainly oue of the most valuable

THE JUDICIAKY.

264
of the

modern improvements

ment.

In a monarchy

despotism of the prince

in the practice

of govern-

an excellent barrier

is

in a republic

it is

to the

a no less ex-

encroachments and oppressions of

cellent barrier to the

And

the representative body.

can

it
;

[ch. xv.

be devised in any

it is

the best expedient that

government, to secure a steady,

upright, and impartial administration of the laws.

ever attentively considers

the different

Who-

departments of

power, must perceive that in a government in which they are
separated from each other, the judiciary, from the nature
of its functions, will

always be the least dangerous to the

the Constitution,

rights of

political

least in a capacity to

because

annoy or injure them.

it

tive not only dispenses the honours, but holds the

the community.

The

Legislature not only

be

will

The Execusword of

commands

the

purse, but prescribes the rules by which the duties and
rights of every citizen are to be regulated.

The

judiciary,

on the contrary, has no influence over either the sword or
the purse

no direction either of the strength or of the

;

wealth of the society, and can take no active resolution
whatever.
will,

It

be truly said to have neither force nor

but merely judgment; and must ultimately depend

upon the aid
cise

may

arm

of the executive

for the efficacious exer-

even of this faculty.

" This

portant
judiciary

simple view of the matter suggests several imconsequences.
is

It

proves incontestibly that the

beyond comparison the weakest of the three

departments of pow er
7

;

that

cess either of the other two
requisite to enable

it to

;

it

can never attack with suc-

and that

defend

all

possible care

is

itself against their attacks.

It equally proves, that although individual oppression

may

THE JUDICIARY.

ch. xv.]

now and then proceed from

265

the courts of justice, the

general liberty of the people can never be endangered

mean, so long as the judiciary re-

from that quarter.

I

mains

from both the Legislature and the Ex-

truly distinct

ecutive.

For I agree that

'

there

is

no liberty

if

the power

of judging be not separated from the legislative and executive powers.'

It proves in the last place, that as liberty

can have nothing to fear from the judiciary alone, but

would have everything

to fear

other departments

the

;

from

its

union with either of

that as all the effects of suck

an union must ensue from a dependence of the former on
the latter, notwithstanding a nominal and apparent separation
it is

;

that as, from the natural feebleness of the judiciary,

in continual jeopardy of being overpowered, awed, or

influenced by

its

can contribute so

co-ordinate branches

much

to its firmness

;

that as nothing

and independence

as permanency in office,* this quality may, therefore, be
justly regarded as an indispensable ingredient in its constitution,

and

in a great

measure as the citadel* of the

public justice and the public security."!

Other

are

considerations

Justice Story, from this

urged by Mr.

and other

authorities,

not less weighty and convincing.
"

The

benefits,"

he

says,

" of the integrity and modera-

tion of the judiciary arising from their independence, have

been already
* The

felt

in

more States than

Italics are in the original.

one, in mitigating

t

§§ 1600, 1601.

N

THE JUDICIARY.

266

[ch. xv.

the effect of hasty legislation, aud of unjust and partial

men

Considerate

laws.

every description

of

ought to

prize whatever will tend to beget or fortify that temper in

man

our courts, as no

can be sure that he

to-morrow the victim of a

may be

And

a gainer to-day.

not be

everybody must feel that

tendency of such a

the inevitable

may

by which he

spirit of injustice,

spirit is

to

sap the

foundations of public and private confidence, and to intro-

duce in

its

stead universal distrust and distress."*

Again, laws necessarily become numerous,

and
"

To

avoid an arbitrary discretion in the courts,

indispensable

that they should be

bound down by

rules and precedents, which serve to define
their

it is

strict

and point out

duty in every particular case that comes

before

them."

To

acquire a competent knowledge of these

laws and precedents, demands long and labori-

ous study.
"

Hence

it

have sufficient

is

that there can be but few

stations of judges.

that the

the laws to qualify

skill in
.

.

.

men who
them

will

for the

These considerations apprise us

Government can have no great option between

characters

;

and that a temporary duration in

office,

fit

which

would naturally discourage such characters from quitting a
*

§ 1603.

THE JUDICIARY.

ch. xv.]

267

lucrative line of practice to accept a seat on the bench,

would have a tendency
tice into
it

hands

to

throw the administration of jus-

and

less able,

less well qualified to

conduct

with utility and dignity."*

Also:
" It

is

obvious that, under such circumstances,

tenure of office of the judges

soon be rendered odious

;

way

to others,

who

;

and they

the judicial
of

There can be no

In a monarchy, the

department.

a people

naturally

are

be made to

pliant tools of

government, except

security for the minority in a free

sympathies

will

become more

shall

the leading demagogues of the day.

through

the

not because they do wrong, but

because they refuse to do wrong
give

if

not permanent, they will

is

enlisted

against

the meditated oppressions of their ruler; and they screen
his victims

His

from his vengeance.

But

one against the community.

the cause of

is

in free governments,

where the majority, who obtain power

for the

moment, are

supposed to represent the will of the people, persecution,
especially of a political nature,

community against one.
lenting, because

it is

becomes the cause of the

It is the

more

violent

deemed indispensable,

or to enjoy the fruits of victory.

In

free governments,

therefore, the independence of the judiciary

more important
citizens,

to

the

security

than in a monarchy

;

since

of
it

the
is

becomes

rights

moment with

far

of the

the only barrier

against the oppressions of a dominant faction,

the

and unre-

to attain power,

armed

for

power, and abusing the influence acquired

*

§

1605.

N

°2

THE JUDICIARY.

268

under accidental excitements,

and

liberties

to

[oh. xv.

overthrow the institutions

which have been the deliberate choice of the

people."*

The above

facts

and reasonings are so

mentary and familiar, in relation
tutional system, that the extracts

to

ele-

our consti-

may have been

found somewhat tedious; but they are of importance when

it is

considered

how

little effect

such

judicious expositions of great principles and

such earnest and solemn warnings have had, in
preventing the w ide and growing adoption in
T

the United States of

the very practice thus

denounced.

When Mr.

Justice Story's

w ork was pubT

lished (in 1833), only five out of the twenty-

four States then existing had adopted the principle of submitting the judges to the ordeal of

an election, and appointing them

for a

term of

years.

Eleven years later Mr. Justice Kent, in his

Commentaries, published in 1844, enumerates
twelve States out of the then
nine, in

which

all

number

of twenty-

the judges were subjected to
*

§ 1612.

THE JUDICIARY.

ch. xv.]

the principle of election, and

269

all

appointed for

terms of years, varying from two and three to
seven and eight, and in one instance only for
as

many
At

as twelve years.

present (1853) the elective principle in

the appointment of judges, and their appoint-

ment

for short periods, prevails in twenty-two

out of the thirty-one States of the Union.

In

three others the elective principle has been

adopted, but the term
viour
for a

;

is

during good beha-

and in two others they are appointed
term of years by the Governor.

Such an extensive and absolute departure
from, and repudiation of principles that have

been held by

all

the public writers and

all

the

statesmen of the civilised world, to be the very
foundation of true liberty, and even of the
security of

life

and property,

which, occurring as

it

is

has in so short a time,

and among a people so versed
sion,

must be regarded

a phenomenon

as

in free discus-

among

the most ex-

traordinary

events

in

Doubtless

has

point of view from which,

it

under peculiar

its

constitutional

circumstances,

its

history.

advocates

;

THE JUDICIARY.

270

[ch. xv.

have derived their confidence in justifying and
maintaining

it

and

;

to this I shall take occa-

The

sion to advert in a note.

fact itself can-

not be otherwise than one of the most pregnant
importance, and

may be
be the

its

consequences, though they

slow in developing themselves, will not

less certain.

The

practice in the different States, in 1844,

Mr.

is

described by

p.

294, of his Commentaries, and

At

densed as follows.
sent),

among

Justice Kent, in vol.

the older

may be

i.

con-

that time (as at pre-

and more

settled States

of the Union,
" Connecticut, though she appointed the judges of her

Supreme Court, and
behaviour,

required

of the Superior Court, during
'

all

other

judges

to

good

be appointed

annually, by the concurrent vote of the Senate and

House

of Representatives.'

"Vermont

elected

all

her judges

annually by the

General Assembly.
"

Rhode

Island,

up

to the

year 1843, elected

all

her

judges annually, but in that year, by an alteration in her
Constitution,

the judges

of

the

Supreme Court were

directed to be elected by the Legislature, during pleasure
all

the other judges to be elected for one year.

"New

Jersey and Ohio appointed their judges of the

^Supreme Court and of the Circuit Courts for seven years.


THE JUDICIARY.

ch. xv.]

In Ohio the appointment

is

271

by the joint ballot of both

[Now, since 1851, by the people.]

Houses."

Among

the younger of the northern States,

Michigan

Indiana and

also

appointed their

judges of the Supreme and Circuit Courts for

In Michigan the judges of the

seven years.

inferior Courts

were elected by the people for

The

four years.

election in Indiana

fixed by their Constitution of 1816,

"The judges

Supreme Court

of the

s.

is

7

thus

:

shall be appointed

by the Governor, by and with the advice and consent of the

The

Senate.

president of the Circuit Courts shall be ap-

pointed by joint ballot of both branches of the General

Assembly

;

and the associate judges of the Circuit Courts

be elected by the qualified electors of the respective
counties. " *

•shall

"

By

the Ordinance of Congress of July, 1787, for the

government of the north-western
the judges were

of

behaviour.

to

territory, the

continue

in

force

But the subsequent Constitution

Indiana cut down

that

permanent tenure

to

commissions
during good
of Ohio and

one of seven

years.

"

Of the southern

States, Tennessee appointed her

judges of the Supreme Court for twelve years, and of the
inferior Courts for eight years.

* By the new Constitution of 1851, the judges of the
now elected by the people.

Superior Courts also are

THE JUDICIAKY.

272

[ch. xv.

" Georgia appointed her judges of

the Supreme

and

These are elected by the

Circuit Courts for three years.

All the other judges are elected annually by

Legislature.

the people.

"Alabama, in 1819, established the
be during good behaviour

judicial tenure to

but the Constitution has been

and the tenure changed

since altered,

the election

;

is

by

to six years,

Houses

joint vote of both

and

of General

Assembly.

By

"

the

first

Constitution of the State of Mississippi,

in 1807, the judges held their office during good behaviour,

or until 65 years of age, and were appointed by the joint vote

of the two

Houses

of the Legislature, given viva voce,

recorded.

But by

the Constitution, as

every officer of the

Government,

amended

in

and

1833,

legislative, executive,

and

judicial, is elected by the universal suffrage of the people

that

is

of age,

who has resided within

ceding,

and

city,

;

by every free white male citizen of twenty-one years

for the last four

the State for one year pre-

months within the county,

or town in which he offers to vote.

The judges of

the

Supreme Court of Errors and Appeals, are thus chosen by
districts for six years.

The Chancellor

is

elected for six

The judges of the
The
districts for four years.

years by the electors of the whole State.
Circuit Courts are elected in

judges of probates and clerks of courts are elected for two
years, &c.
all

This

is

carrying the democratic principle beyond

precedent in this country.
" In Arkansas the judges of the

their offices for eight years,

Courts for four years."

Supreme Court hold

and the judges of the Circuit

THE JUDICIARY.

ch. xv.]

273

Since the date of Mr. Justice Kent's sum-

mary

of the different

modes

of appointment of

judges in the different States, the great State
of

New York

has adopted the elective system

in the appointment of judges.

In that State

the judges, by the present Constitution, hold

and are

their offices for eight years,

the people, that

is

elected by

to say, " by the white male

who have

citizens of twenty- one years of age,

resided one year in the State, and four months

preceding the election."

who have
who

" Persons of colour

resided three years in the State, and

possess a freehold of

have held

it

250

dollars,

and

one year, have a right to vote."

In the important State of Pennsylvania also
the principle of the appointment of judges for

terms of years has been adopted
of the

;

the judges

Supreme Court being appointed (by the

President and Senate) for fifteen years, those
of the Court of

Common

Pleas for ten, and

the Associate Judges for five years.
the

State of

New York

And

in

the salaries of the

judges of the Superior Courts are subject to an
annual vote of the Legislature, which renders

N 3

274

THE JUDICIARY.

them annually

liable

[ch. xv.

to dismissal

from their

posts at the pleasure of the Legislature.

In

Florida the

judges (since

1851) are

elected by the people for jive years

six

;

Wisconsin, and

Iowa,

souri,

and

Mis-

in

California,

for

Ken-

and even in

Maryland,

in

;

tucky and Virginia, by their new Constitutions

elected

and

1850

of

1851,

the

judges

are

by "the white male citizens of 21

years of age"

(resident from six

two years), in the

first

months

to

State for ten, and in

the last for four, eight, and twelve years.

In twenty-two States, therefore,
that

the

judges

are

it

appears

appointed by election,

either annually (as in four instances), or for

terms of two,

three,

four,

five,

six,

seven,

eight, ten, twelve, or, in one instance, fifteen

years.

In

and in North and South Caro-

Illinois,

lina, the

appointment

ballot of both

is

by

election

by the joint

Houses, but the term during

good behaviour.
Louisiana has adopted the principle of a

term of years

;

the judges being appointed by

THE JUDICIAKY.

ch.xv.]

the Governor for eight years.

275

Texas

also limits

their term of office to six years, but places the

appointment in the Governor.
In the remaining States the judges are, I
believe,

appointed in

deemed by

all

the

manner

hitherto

authority and experience to be

the only one by which the independence of the
judiciary can be secured, and with

and

liberties

of the people

;

that

it

the rights

by the

is,

Executive, and during good behaviour.
It

is

impossible

to

look upon this wide-

spread departure from the only practice which
could secure the independence of the judiciary,

without recognising in
diffused,

which aims

independence.
rate

it

a feeling, as widely

at putting

The burden

an end

to that

of all those elabo-

arguments and earnest warnings of the

greatest

statesmen

and lawyers

whom

the

United States has produced, as above quoted,
has been, that there was but one check, under
their system of government,

upon the

self-will

of democracies, one security against the tyranny
of the majority, and that was to be found in

the independence of the judicial body.

We

THE JUDICIARY.

276
have seen that
as

back

far

alteration

independence was attacked

this

as the year

Jefferson, in his

in

1801, by President

endeavour

the

[ch. xv.

to

bring about an

Constitution, which would

permit of the judges of the Supreme Court
of

United States

the

terms of

years

being

We

only.

appointed for

have seen

that,

by an Act of Congress, in the year 1803,
judges

of the

States,

Circuit Courts of the United

who had been appointed

in accordance

with the Constitution, were, by a legislative

Act,

a

dismissed, in

manner,

the best legal opinions,

by the Constitution

;

according to

totally

unauthorised

and that President Jack-

son advocated the principle of appointments
for terms of years in
It is perfectly well

1829 and

known

in

1832.

also that

from the

time of the framing of the Constitution

to the

present day, there has existed a strong feeling
of jealousy, and an open hostility, on the part
of the

ultra-democratic body throughout the

Union, in relation to the judiciary, whether of
the individual States or of the
is

Union

;

and

it

only too evident that this jealousy and hos-

ch. xv.]

THE JUDICIARY.

tility

have manifested themselves in the

lation

277

which has been above referred

to,

legis-

and by

which the judges of so many of the States have
been subjected to the ordeal of popular
tions,

and their tenure of

office

elec-

degraded into

one of a temporary and precarious character.

This great revolution in the theory and practice

of constitutional

government, as under-

stood by the founders of liberty in the United
States, is both a

consequence of the progress

of ultra-democratic principles in that country,

and a powerful means of supporting them.

The fundamental change
free

free

in the principles of

government, as hitherto understood in
has taken

countries,

seen, in

Union.

no

less

has been

than twenty-seven States of the

consequences upon their indivi-

Its

dual peace

effect, as

all

and

welfare,

upon the tone and

character of the State Governments, and the
security of those
ters

live

under them, are mat-

beyond the scope of the subjects now under

consideration.
tion,

who

Within the period

of a genera-

probably, this will have become abund-

antly evident.

But

its

probable results upon


THE JUDICIAKY,

278

United States

the

Constitution of

the

[ch. xv.

question of general interest,

a

is

and one imme-

diately connected with the matter in hand.

The independence
the words of
"

The

more

Mr.

of the judiciary

to use

Justice Story,

citadel of the Constitution."

facile in

is,

" Nothing

.

.

is

republics than for demagogues, under artful

pretences, to stir

up combinations against the regular
Their

cise of authority.

selfish

exer-

purposes are too often in-

terrupted by the firmuess and independence of upright

make them

magistrates, not to

at all times hostile to a

power which rebukes, and an impartiality which condemns

The

them.

judiciary, as the weakest point in the Consti-

tution on which to

make an

attack, is therefore constantly

that to which they direct their assaults, and a triumph here,

aided by any momentary popular encouragement, achieves
a lasting victory over the Constitution
republics, those

who

itself.

Hence, in

are to profit by popular commotions

or the prevalence of faction are always the enemies of a

regular and independent administration of justice.

spread

all sorts of delusions, in

mind and

They

order to mislead the public

excite the public prejudices.

They know

well, that without the aid of the people their

full

schemes must

prove abortive, and they, therefore, employ every art to

undermine the public confidence, and
the

instruments of

subverting

to

their

liberties."*

* §§ 1611,1621.

make
own

the people
rights

and

THE JUDICIARY.

ch. xv.]

Now, by
ments
"

the fifth Article of the Constitu-

mode

tion, the

279

make amend-

of proceeding to

to it is as follows

:

The Congress, whenever two-thirds of both Houses
deem it necessary, shall propose amendments to this

shall

Constitution, or, on the application of the Legislatures of
two-thirds of the several States, shall call a convention for

proposing amendments, which,
valid to all intents
tion,

when

ratified

the several

in

either

and purposes, as part

States,

case, shall be

of this Constitu-

by the Legislatures of three-fourths of
or by

thereof, as one or the other

conventions of three-fourths

mode

of ratification

may be

proposed by Congress."

Already the Legislatures of much more
than

"two-thirds

(twenty-seven
stroyed

the

out

the

of

thirty-one)

independence of

by rendering their

offices

States"

several

of

have

de-

the judiciary,

elective,

or

their

tenure for a few years only, or both.

There can be no doubt that the proportion
will steadily, not to say rapidly, increase

;

for

there can be no question of the ultra-democratic tendencies of all the

rising
fore,

in

the

new

extreme west.

States that are

When,

Oregon, Minesota, Utah (the

there-

Mormon

THE JUDICIARY.

280

New

Valley),

from

must happen

and

Mexico,
erected

territories,

[oh. xv.

Nebrasca,

into

States,

are,

which

in the course of a few years, the

proportion of States which will have adopted
this principle, as

have
It

not,

be thirty-two out of thirty-six.

will

be

to

is

compared with those which

expected

also

democratic principles will

that

before

the

ultra-

long gain

the ascendancy in the few older States which

have

hitherto

yielded

1851.

them

to

1850, and Virginia in

in

old asso-

hereditary property, a more

population,

mulating

and

accumulated

wealth,

education,

maintained the

—even

Kentucky

them.

Even Massachusetts, where

ciations,

general

withstood

and

a

settled

rapidly-accu-

high standard

of

have for the most part

Whig

party in the ascendant,

Massachusetts, where,

if

anywhere

in

the Union, the anticipations of the founders
of the republic have been answered, in com-

bining the greatest latitude of popular power

with social culture, intellectual progress, and
firm government,

— even

that State

is

threa-

THE JUDICIARY.

ch. xv.]

281

tened with the approaching triumph of the

democratic party

;

the propositions of the late

Convention for certain

alterations

in

their

Constitution, in accordance with the principles

of that party, having been only lost, as above

adverted

to,

on the recent

trial of

strength,

by (in round numbers) 5000 out of a

130,000

total of

votes.

Already a large majority of both Houses of
Congress belong

may
mode

to the

democratic party.

It

be anticipated, therefore, that by either
of proceeding

either

by the concur-

rence of " two-thirds of both Houses of Congress," or " on the application of the Legisla-

tures of two-thirds of the several States"
will soon

it

be perfectly within the power of that

party in the Union to force an

amendment

of the Constitution, which shall deal with the

independence of the judiciary of the United
States as they have already dealt with
their

own

it

in

several States.

It is clear,

indeed, that they have

power of doing

so.

And

it

is

now

the

equally in ac-

cordance with their principles, with their well-

THE JUDICIARY.

282

known energy and
of

terests

their

[ch. xv.

perseverance, with the in-

party,

and

their

what

is

belief that thev are doin^

presumed

best for their

country, that they will not be long in endea-

vouring to exercise that power with

When

they have done

so,

effect.

the judiciary of

the United States will be no longer what

now

is,

it

" a co-ordinate power in the State,"

" the balance-wheel

" the

of the Constitution,"

only check upon the invasions of faction," and

" the safeguard of the rights and

liberties of

the people against the tyranny of majorities."*
It will be
will

none of these things,

and there

remain none in the then form of govern-

ment

of the United States.

Under another
way
which

being

is
is

point

of

prepared
the

effecting

view,

for

the

also,

this

destruction

change,
the

of

independence and lowering the position

of

the judiciary in those numerous States above-

mentioned.

It

from among the general

is-

body of the legal profession that the
sident

and

Senate
*

of

the

§ 1621.

United

PreStates

THE JUDICIARY.

ch. xv.]

must look

and firmness,

to

functions of the

and

men

for

fill

Mr.

learning,

of

Supreme Court, and the

Justice

Kent

443 —

to

the 1st

vol.

"

look for more firmness of pur-

greater

pose,

this

The United
command better

:

States are fairly entitled to

and

in

says,

circuit

On

the Union.

of his Commentaries, p.

talents,

integrity,

the high and important

district courts of

subject

283

independence

of

action,

and

brighter displays of learning, in the judiciary
of the United States'

Courts," than can be
" where

expected by those individual States
the tenure of office of the judges

and a

their

for

now
so,

liberal

and stable provision

But

support."

so numerous,

and

if

is

uncertain,

not

in those

likely to

the position of the judge

is

is

made

States,

become more
degraded, the

estimation of the whole legal profession will

be altered, and

men

and high feeling
themselves

to

it,

of ability, acquirements,

will not

be found to devote

as a career

of honourable

ambition as well as a means of arriving at
wealth or competence.

When

this takes place,

and when the standard of learning and the tone

THE JUDICIARY.

284

[ch. xv.

and honour has been lowered

of independence

in that profession,

where

will

be found the

on points which re-

to set public opinion right

quire study, thought, and elevation of

master

make

to

;

which they see
or

to

mind

to

a stand against propositions

will

with

act

men

be

fatal to true liberty

fearlessness

;

public

against

clamour?

And where

membrance

of the fact, that in the celebrated

will

then be the re-

" Declaration of Independence" of the 4th of

1776, one of the principal articles of

July,

complaint made against the Sovereign of this
country was, that " he

made judges dependent

on his will alone for the tenure of
offices

•,

and

the

their

amount and payment of

their

salaries " ? #
* Since the above was written, an ominous confirmation has

come under

my

notice, of the

tendency of public opinion in

the United States in this particular.

work on

me

Professor Lieber, in his

and Self-Government (Boston, 1853),

thus adverts to a recent fact regarding

p. 190,

to

Civil Liberty

a strange anomaly that, as

it

it

:

—"

would seem by a

It

seems

late reso-

lution in the United States' Senate, the President has authority to

The

remove judges in the
principle

is

tories " or the States.

threatened.

To

'Territories.'"

the same, whether acted upon in the " Terri-

The independence of the judges is equally

this subject Professor Lieber devotes a chapter

THE JUDICIARY.

ch. xv.]

of earnest reasoning

285

and solemn warning, in the endeavour

support the sound doctrine of the Constitution.

He

the elementary truth that " the immovability of judges
essential element of civil liberty."

He

:

is

an

has also treated the

subject very ably in a letter addressed to the

1848

to

reiterates

German people

in

" Ueber die Unabhangigkeit der Justiz, oder die Freiheit

des Rechts in England
berg, 1848.

und

in

den vereinigten Staaten." Heidel-

286

CONCLUDING REMARKS,

CHAPTER

[ch. xvi.

XVI.

CONCLUDING EEMARKS.

The

Mr.

questions to which

Justice Story de-

votes the few remaining chapters of his "

Com-

mentaries " are, Trial by Jury, Treason,
of Rights, the

Bill

Right of

Petition,

the

the

Liberty of the Press, the Quartering of Soldiers,

General Warrants

;

and upon these the

law and practice of the United States are
either identical with our own, or differ only in

particulars which present

no points of

interest

comparison between their practice and

in a

The

ours.

to slavery

clause in the Constitution relating

and

fugitive slaves

is

touched upon

very briefly, and without adding any particulars

of

topics

general importance.

which he adverts

to

The

few other

do not require spe-

CONCLUDING KEMARKS.

ch. xvi.]

But the following passages from

cific notice.

his

287

concluding

remarks can never be read,

either in that country or in this, without exciting admiration for his eloquence,

sympathy

with his jioble aspirations, and a participation

and

in his forebodings
"

The

fears.

fate of other republics

their decline,

and their

the pages of history,

fall

if,

their rise, their progress,

are written but too legibly on

indeed, they were not continually

before us in the startling fragments of their ruins.

They

have perished, and perished by their own hands.

Pros-

perity has enervated them, corruption has debased them,

and a venal populace has consummated their destruction.
Alternately the prey of military chieftains at home, and of

ambitious invaders from abroad, they have been sometimes

cheated out of their liberties by servile demagogues, sometimes betrayed into a surrender of them by false patriots,

and sometimes they have willingly sold them
to the despot

who has

for a price

bid highest for his victims.

They

have disregarded the warning voice of their best statesmen,

and have persecuted and driven from office their truestfriends

They have

listened to the fawning sycophant,

calumniator of the wise and the good.

renced power more in

ments than in

its

its

and the base

They have

reve-

high abuses and summary move-

calm and constitutional energy, when

it

dispensed blessings with an unseen and liberal hand.

They have surrendered
country.

to

faction

what belonged

to

the

Patronage and party, the triumph of a leader,

and the discontents of a day, have outweighed

all solid

CONCLUDING KEMAEKS.

288

and institutions

principles

[ch. xvi.

Such are the

of government.

melancholy lessons of the past history of republics down to
our own.

.

.

.

" If these Commentaries shall but inspire in the rising

generation a more ardent love of their country, an un-

quenchable thirst for liberty, and a profound reverence for
Constitution

the

accomplished

all

and the Union, then they

will

have

that their author ought to desire.

Let

the American youth never forget that they possess a noble

and

inheritance, bought by the toils,

of their ancestors, and capable,

if

sufferings,

and blood

wisely improved and

faithfully guarded, of transmitting to their latest posterity
all

the substantial blessings of

life,

the peaceful enjoyment

and independence.

property, religion,

of liberty,

The

structure has been erected by architects of consummate
skill

and

fidelity

ments are
are full of

;

its

wisdom and order
It has

nable from without.
if

foundations are solid

beautiful, as well as useful

the work of

;

and

its

;

its

negligence of

its

compart-

for immortality,

aspire to such a

may, neverthless, perish in an hour by the
tion, or

its

arrangements

defences are impreg-

been reared

man may justly

;

only keepers

folly,

—the

title.

It

or corrup-

people.

Re-

publics are created by the virtue, public spirit, and intel-

ligence of the citizens.

They

fall

when the wise

are

banished from the public councils because they dare to be
honest, and the profligate are rewarded because they flatter

the people in order to betray them."*

Some

considerations,

which

* Story, §§ 1910-1914.

may

not be

CONCLUDING REMARKS.

ch. xvi.]

289

without their value in this country, are suggested by what has

been exhibited of the

principles of the Constitution of the

and of

States,

loped

the

in.

its

first

mode

United

of working, as deve-

sixty-five

years of

its

ex-

istence.

The

advocates of extreme popular opinions

in this country are dissatisfied with the principle

on which the House of

Commons

been hitherto constructed, and require
instead of

its

being composed, as

the representatives of

all

it is

has
that,

now,

of*

the interests, feelings,

and opinions of the various

classes

and sections

of society, from the highest, very nearly to the
lowest, the preponderance being largely on the

side

of property,

cultivation,

high acquire-

ments, and stable and hereditary instincts and
convictions

it

should be made to represent

more completely and

directly,

exclusively, the numerical

munity

;

not almost

mass of the com-

under the supposition that the inte-

rests of the latter
for,

if

and that the

would then be better cared
interests

first

enumerated

would, in some manner or other, take care of

o

CONCLUDING REMARKS,

290

Were

themselves,

the

[ch. xvi.

advocates

of

these

opinions to succeed in effecting this change,
the j would establish a

mode

of government

more democratic than anything

far

existing

under the Constitution of the United

They

States.

profess to desire to preserve the present

form of parliamentary government by Queen,
Lords, and
to

Commons

but, at the

;

same

time,

throw the balance of power completely into

the scale of the numerical majority and their
representatives in the

House

of

Commons,

in

order that the will of that majority, as represented at the moment, might be brought to

bear at once and without delay upon the legisIf this were to be so,

lation of the country.
is

plain

that

neither

the

Upper House

it

of

Parliament nor the Crown could be permitted,
either in theory or practice, to interpose delay,

and

their functions

would be reduced

more than giving a formal assent
clared will of the

Lower House.

under whatever name

government of

this

a pure democracy.

it

to little

to the de-

In

fact,

might be covered, the

country would have become

CONCLUDING KEMAEKS.

ch. xvi.]

291

Now"" we have seen that the Constitution of
the United States has endeavoured to guard
itself

by every precaution

that

it

power of a republican constitution
against being, or

framers

as

"a

balanced powers
it

is

subjected

It

to

to

adopt,

described by

is

Constitution
;"

in the

ever becoming,

if possible,

a pure democracy.

is

its

and

of limited

the democratic element in

numerous

checks, and in point of

fact,

and

when

powerful
contrasted

with the power and "influence" of the President,

and the higher and more independent

position of the Senate, that element

is

greatly

reduced in relative weight and authority, and
is

unable suddenly to overbear the other two

But above

branches of the Legislature.
has, above

it,

and the Senate, and the Presi-

dent, the authority of the judiciary

of the

all, it

Supreme Court

the judges

of the United States

not a subordinate, but, be

it

always borne in

mind, a co-ordinate power in the State.
that power which
sort, to

is

It is

charged, in the last re-

check any the slightest inroads upon

or deviations from the strict letter of the Con-

o 2

CONCLUDING EEMAEKS.

292
stitution

to

;

[oh. xvi.

oppose any possible invasions of

democracy upon the distribution and balance
of power, as established by the formal consent
of the great body of the
all

community

to act in

;

emergencies threatening that balance, as the

great conservative power of the State, able to
declare " void and of none effect" any legislative attempts to overturn

it.

Such a power, above and paramount

Act

of the Legislature,

a

House

of

Commons,

any

we know nothing

under our system of government;
it,

to

yet,

of

without

constituted as the ad-

vocates of extreme opinions in this country desire,

a

would be without check or

mode

this

of

control,

and

government would be established in

country as widely different from that pos-

sessed,

under their Constitution, by the people

of the United States,
tional

government

is

as a limited

from a pure democracy.

But would the advocates
opinions desire to

endeavour

of those extreme

take a farther step, and

to assimilate

to those of the

constitu-

our institutions entirely

United States

must be then prepared

for a

?

If so, they

change in the

CONCLUDING REMARKS.

ch. xvi.]

of carrying on the business of legisla-

mode

which

tion,

make

will

that to which

we have

hitherto been accus-

what we are accustomed

United

of the

to

abandon

" parliamen-

to call

Under

tary government."

from

entirely different

it

They must be prepared

tomed.

tem

293

the legislative sys-

States, parliamentary go-

vernment does not

With

exist.

us,

if

the

Minister for the time being, in the ordinary
course of things, has not the support of the
majority of the
resign,

Under

and give way

of

to

Commons, he must

a ministry that has.

the system of the United States, neither

President

nor

Ministry have

necessity for a

Legislature,

carried

House

majority in either

and

have

in

many

on the Government

and four

any absolute

years,

without

it.

for

House

of

instances,

two, three*

The

advocates

of extreme popular opinions in this country

wish to invest the House of

Commons

with

an authority and power so direct and immediate in

its

action, as to be liable to little

or no restraint from any other powers in the
State.

If they were to endeavour to arrive at

294

CONCLUDING EEM ARKS.

their object

by inducing

the

institutions

[ch. xvi.

this country to

United

of the

adopt

States,

they

would very soon find that the present high

and independent position

House of

the

of

Commons would have been exchanged
in

one

for

which the Senate would share with them

the power over the public purse, and in which

the President would be able by his " influence"
to cause the supplies to be voted

in both

Houses adverse

by majorities

to his general policy.

Moreover, they would discover,

if

between the two Legislatures

both countries

were

fully carried into effect,

House

the

in

of

Commons

the analogy

that,

instead of

being, as now, the

most prominent of the two Houses of Parlia-

ment

in all matters of legislation,

the most powerful of the two,

been reduced

to inferiority,

in general estimation,
I

sons

should be sorry

between

it

and by

far

would have

both in position,

and in power.
if,

in

drawing compari-

our system of

constitutional

government and that of the United

States, I

should be thought by any one in that country
to

have been actuated by feelings in the

least

CONCLUDING REMAKES.

ch. xvi.]

295

degree approaching to hostility or unkindness.
I

have been compelled, by the evidence of

to

show that

facts,

their constitutional system, in its

actual practice, has in several important points

deviated from the path

marked out

for it

by

the letter and spirit of the Constitution, and

declined from the standard therein held up to

and reverence.

their admiration
this in the

I

have shown

words of the ablest commentators,

and of some of the most distinguished statesmen

who have adorned

the annals of their country.

And

I

plain

and open current of events

of

have been

the Union,

justified,

by reference

in all parts

way

in inferring that the

being prepared for

to the

is

greater deviations from

still

the letter and the spirit of the Constitution, by

the successful attacks that have been

made

upon that which has been regarded as the very
" citadel " of their institutions, the independence of the judicial body.
agreeable to

many

It

may

not be

persons in the United States.

that these matters should be brought forward
into the general light,

vation in Europe.

and submitted

We

v

to obser-

are sometimes told also

CONCLUDING REMARKS,

296

[ch. xvi.

that their institutions do not concern the people
of Great Britain, and that, in

commenting on

them, we go out of our way gratuitously, in
order to indulge passions of the lowest order

and of the most contemptible kind.

A

bad compliment would indeed be paid

to

the Constitution of the United States, by any

one in this country who would presume to say,
that the institutions under which

upwards of

twenty millions of the Anglo-Saxon race had
elected to live, did not concern

him

;

that their

prospects of well-being, of intellectual, moral,

and religious progress, of rational
social

him matters

of no

and that they could have no

effect

happiness, were to

interest,

upon the mind of
fact,

and

liberty

this country.

we have the very deepest

In point of

interest in them.

There are but two great systems of
vernment

in existence, theirs

stitutional

the

prove

that

civilised

is

and rational

most

trial

They have

world.

moderate

besides contributing
well-being,

and ours, and con-

governments are now on their

before

go-

free

to

to

liberty,

mere material

not inconsistent with firm govern-

CONCLUDING EEMARKS.

ch. xvl]

297

ment, with truth and justice, with faith and

and honesty, with

honour

with

reverence,

learning and taste, w ith gentleness and obediT

with imagination,

ence,

and with

science,

and with

and therefore of their

capacity to raise the civilised
level of

art,

these in their highest

all

state of development,

with

low desires, and up

man above

the

the highest

to

point of intellectual and moral perfection attainable by his finite nature.

We

believe, in

our system of government

this country, that

is

the best yet devised, or rather yet unfolded in

the mysterious order of Providence, for lead-

ing to

all

strengthen
fections

duties

;

therefore, to

it,

and w iden
T

man who

To

those great objects.

its

basis

thinks aright,

for in so

petuate a great

remove
is,

is

inheritance,

imper-

its

to the English-

among

doing he

defend and

the

first

of

aiding to per-

and perhaps

to

extend to other nations the means of arriving
at those blessings

forth

and

defects

foster.

which

But

it is

if

calculated to

he

is

draw

to scan the

and probe the imperfections of

his

own

system of government, with a view to amend,
o 3

CONCLUDING REMAKES.

298

reanimate, and invigorate

warnings of what he should

profit by, or

avoid

?

The

challenges

why should he

it,

abroad for examples that he

not also look

may

[ch. xvi.

Constitution of the United States

him

such inquiry

to

for

;

it

was, dur-

ing those cloudy days of political blindness on

one

side,

and

just resentment on the other, esta-

blished in direct antagonism to our own, in

many

of

its

fundamental principles

;

under the

guidance of those new theories of government

which rose

a hasty and immature pro-

into

minence and popularity on the continent of
Europe, in the midst of the heated passions

and the material

sufferings, the tyranny, the

moral anarchy, the scepticism,

resistance, the

and the presumption, of the end of the 17th
century,

We

and the greater part of the 18th.

have a right

to inquire

how

those theories

work, and whether they encourage us to bor-

row from, or warn us
petty details of

to avoid

them.

Into the

what might be called by the

various names of corruption, misgovernment,

weakness, neglect,

incapacity, wilful wrong,

or omission of right,

on either

side, there is

CONCLUDING REMARKS.

ch. xvi.]

no necessity, with a view

But

pose, to enter.

if

I

to

299

the present pur-

have shown that a

Constitution which claimed to be an improve-

ment upon

other Constitutions that were

all

ever designed by man, and especially upon our

own, has in the

first sixty-five

years of

its exist-

ence given proof of defects which experience

has not shown to exist in our own, and has declined from the high ideal which

claimed for

it,

framers

I have done that for which I

no apology

to

reverence

for the

honoured

its

any one, and which, in a

owe

spirit of

wisdom of our own time-

institutions, in all their great funda-

mental principles, and with a deep sense of the
benefits which,

under Providence, they have

conferred upon this country, I rejoice to have
,be enable to do.

NOTES.
Note

The

authors of

I.

the

(to

Chapter VIII.)*

"Federalist" (Mr.

Madison, Mr.

Hamilton, and Mr. Jay), speaking the opinion of the most
enlightened

men

of their time, asked themselves,

when

en-

upon the great enterprise of framing a constitution,
" whether societies of men are really capable or not of
tering

establishing good government by reflection

whether

it is

to strike out a political

and choice?"

human wisdom

within the power of

at once

system which shall combine the

elements of freedom and authority in the measure required
to satisfy the highest

lieved

purposes of

same time believed themselves
then

free,

who were capable

of

They beThey at the

civil society ?

themselves capable of that
to

it.

effort.

be the only people, not
President John Adams,

writing to the late Mr. Ei chard Sharp, in the year 1811,

thus expresses himself on that subject
" The people of America, from their singular situation,
:

education,! occupations,
* I

and character, have gone through

have placed these Notes in the order in wnich they

may be

read continuously, instead of in the order of the Chapters to which

they

refer.

+ In municipal

self-government, as well as political

being the essential school for the

latter.

;

the former

;

NOTES.

301

severe trials of the Revolution).

all this (the

But, without

any national pride, or any fastidious national antipathies,
I cannot believe, from anything I have seen or read, that

any other people are capable of it. In other nations, a
revolution will be only an exchange of one absolute go-

vernment

for another.

" Elective

hopes of

all

governments not only give

men, but

full

scope to the

afford continual temptations to aspire

and we have already seen very bold and daring strokes
a determined and desperate ambition."*
In the many instances of

of

during

failure in the attempts

the last sixty years to establish constitutional government
in communities where there was not " intellect, informa-

and integrity enough

tion,

severe

.trials,"!

may be

to be

depended upon through

read the confirmation to a great

extent of the above prognostications.

In France, in par-

ticular, the destruction of all faith, to so great

among
fidence

an extent,

the educated classes, the consequent want of con-

between

sound sense

man and man,

to plausible

the

theories, the

rash surrender of

sweeping away of

everything from the land but a poor and unenlightened
peasantry,

the

have, in the
revolution,

first

period that has

brought about the

elapsed
all

but

fulfilment of the prophecy of Burke, uttered in

" that

if

the present project of a republic should

securities for a

moderate freedom

fail

along with

since
literal

1790,
fail, all

it

;

all

the direct restraints which mitigate despotism are removed;

insomuch that
tire
it

will

out,

monarchy should

ever again obtain

an en-

probably

be, if

not voluntarily tempered at setting

by the wise and virtuous counsels of the prince, the

* Letters

and Essays, by Richard Sharp, M.P., London, 1834,

p. 98.

f

if

ascendency in France, under this or any other dynasty,

Ibid., p. 99.

302

NOTES.

most complete arbitrary power that has ever appeared on

earth"*

The

experience of " elective government" in the country

Washington, of John Adams,, of Madison, of Hamilton,
and of the other great men of the Ee volution, has, as we
of

have seen, been already

sufficient to justify their

own mis-

givings, to the extent, at the very least, of having afforded

proof of the fact that both the basis of the Constitution

which they founded, and
since their day in

workings, are altered

its practical

many important

and both in

particulars,

the direction of pure democracy, in exchange for tha

;

stable

system of balanced powers which was the object of their
aspirations

and struggles.

The experience

of the world, from the very birth-day of

ancient freedom, through the period of

hood in the old republics, and up

heroic

its

man-

to this present hour,

proves that political institutions, to be firm, just, equal,
beneficent,

and enduring, must be "not a

creation, but a

growth;" that they require many elements of food and
nurture for their sound development

;

and that the over-

predominance of one leads to disease and decay.
This over-predominance has been encouraged in modern
times by such notions as " confiding in the instincts of

humanity

;" " trusting to the principles of society in their

action upon the nature and conduct of

unlimited confidence in the
implicitly to

the innate

sense of what

may be

mass of the people, because
if

it is

wrong, they will soon find

* Burke's Reflections
vol. iv. of edit, of 1853.

is

"

"having an

;

"

" trusting

best for the

and the community;" "sub-

interest of the individual

mitting cheerfully to what

man;

human mind

it

the declared will of the

and because,
and take a better

their will
out,

;

on the Revolution in France, pp. 303-4,

NOTES.
course:"

human

all

303

omitting to take any sufficient account of

passions, and of their continual tendency (up to

this period of the

world at least)

to

sway human action, in

opposition to all the efforts of the most enlightened reason,

though strengthened,

it

may

be, with all the

panoply of

Such notions were well designated by the authors
of the "Federalist" as "idle theories, which amuse with
promises of exemption from the imperfections, the weak-

faith.

and the evils incident to society" "deceitful
dreams of a golden age," from which it was time to
awake to the practical maxim that they were " yet remote

nesses,

from the happy empire of perfect wisdom and perfect
virtue." *

" Representative bodies," says Mr. Jay, in a letter to

Washington, in 1786, "
originals,

virtue

men

will ever be faithful copies of their

and generally exhibit a chequered assemblage of

and

vice, of abilities

The mass

and weakness.

are neither wise nor good

;

and the

of

virtue, like the

other resources of a country, can only be drawn to a point

by strong circumstances ably managed, or a strong govern-

ment

ably administered."!

Note

II. (to

Chapter VIII.)

In the collection of " Letters of Eminent

Men

to

George

Washington," lately published by Professor Jared Sparks,
is

J

one from Mr. Jay to Washington, from which I extract
* Federalist, No.

T

6.

Story, vol. iv. p. 136.

Edit, of 1833.

J Correspondence of the American ^Revolution.
Jared Sparks. Boston, 1853. 4 vols.

By

Professor


304

NOTES.

the following passage, as bearing upon the subject of the
previous note, and as illustrative of the difficulties that
beset the course of the statesmen of America, in their

from the Confederation, which had so signally
and of their fluctuations of

transition

to the Constitution;

failed,

mind before they could determine how to adjust the
powers of the new government they were engaged in
forming.

"John Jay to Washington.

"New
"

Dear

Sir,

attention and

concerns,

ments

The

7,

1787.

mere personal

attachment than they do

must

feel

and confess the

as are expressed in

force of such senti-

me

your letter to

situation of affairs calls not only for reflection

What

but for exertion.

prudence,
a

York, January

— They who regard the public good with more

common

question, but

is

it

a

is

be done?

to

question

not

and
is

easy to

answer
"

Would

the giving any further degree of power to Con-

gress do the business

Mr. Jay proceeds

?

I

am

inclined to think

it

would not."

to give his reasons for this opinion,

founded on the selfishness and corruption already exhibited in

that

Assembly, and the

tendencies

of

large

assemblies " to misunderstand or neglect the obligations of
character, honour,

more

and dignity;" and he then proposes a

distinct division of the

into legislative, executive,

He

then adds

powers of the Constitution

and

judicial.

:

"Shall we have a king?

Not, in

my

opinion, while

Might we not have a
Governor-General, limited in his prerogatives and duraMight not Congress be divided into an Upper and
tion ?
a Lower House the former appointed for life, the latter
other expedients remain untried.

;

NOTES.

305

annually; and let the Governor-General

(to

preserve the

balance), with the advice of a Council, formed, for that

purpose, of the great judicial officers, have a negative on

Our Government should, in some degree, be
manners and circumstances and they, you

their acts ?

suited to our

know, are not

;

strictly democratical."

The whole scope

of the learned

*

work

of

John Adams,f

(afterwards the second President of the Republic) written
in the

same year

as the above letter (1787), is to prove,

that no system of Constitutional

Government can be just

or durable that does not guard against the over-predomi-

nance of any one of
principle

its

elements.

And he

illustrates this

by passing in review, in the most

manner, the Governments of

all

masterly

the ancient and modern

Republics, of which classical or recent writers have left
descriptions.

He

expresses his entire agreement with the principle

down by Macchiavelli, in his remarkable letter to Leo
X., on a scheme of reform for the State of Florence, in
which he says, " Those who model a commonwealth must

laid

take such provisions as
high, the middle

sort,

may

gratify three sorts of

and the

low."{

Of

men, the
this

Mr.

speaks as " this great truth, this eternal principle,

Adams

without the knowledge of which every speculation upon

government must be imperfect, and every scheme of a
commonwealth essentially defective." §
* Vol. iv. p. 153.
*T

The Defence

of the

American Constitutions.

London, 1794,

3 vols.
% " Coloro che ordinano una Eepublica debbono dare luogo a tre
quality de uomini, che sono in tutte le citta, cioe primi, mezzani, ed
Macchiavelli's Works, vol. v. p. 246. [Dare luogo, " assign

ultimi."

a place to," not "gratify."]
§ Yol.

ii.

p. 242.

;

NOTES.

306

In several parts of his work he points

the existence

to

in the United States, in his time, of these several ele-

ments, " even in the northern States (especially in Massachusetts), as well as in the middle

he had any fears for the future,

it

and southern ;" and if
was that " the natural

and artificial aristocratical body in every State " would become too powerful.* He considers, however, that they are
sufficiently
stitution,

kept in check by the arrangements of the Con-

which were, in his opinion, as nearly similar

to

much

so

our own as circumstances permitted, though not so

Upon

as he desired.
this eulogy

our

own

Constitution he pronounces

:

" I contend that the English Constitution

the most stupendous fabric of
the
its

human

is,

in theory,

invention, both for

adjustment of the balance, and the prevention of
vibrations,

and that the Americans ought

plauded instead of censured for imitating

Not the formation

have.

of navigation

it

to

be ap-

as far as they

of languages, not the whole art

and ship-building, does more honour

human understanding than

this

to

the

system of Government.

The Americans have not indeed imitated

it

in giving a

negative upon their Legislature to the Executive power
in this respect their balances are incomplete, very

much

to

my mortification." f
The want

of these due adjustments of the balance of

power in a State must, he
and fluctuations.

"The

says, lead to continual changes

only way to prevent these evils

is

and ordinances of the commonw ealth in such a manner that they may support them-

to establish the several classes
r

selves

;

and that they

rank has

its

will always

be able

to do,

one knows his proper sphere of action, and
* Yol.

i.

p.

when each

due share of the administration, when every

371

;

vol.

iii.

p. 124.

whom he

f Vol.

i.

p. 70.

can

NOTES.
confide in

;

and, lastly,

307

when no one has any

occasion to

wish for a change of Government, either because his ambition is not thoroughly gratified, or that he does not think

himself sufficiently secure under such an administration."*

Note

"A

Chapter IX.)

III. (to

Constitution based

upon extreme opinions leads

infallibly to despotism."

So spoke Niebuhr,f

in accordance

with

all authorities

who have dealt with the great question of political government in a truthful and impartial spirit, and on due acquaintance with the lessons of history.
"

The tyranny

of the majority"

is

the danger ever im-

pending in free governments, in proportion as they approach
to

pure democracies.

This danger was present to the minds of the framers of
the Constitution of the United States, and led them to
bend their most earnest thoughts to devise the means
by which "the superior force of an interested and overbearing majority" might be prevented from disregarding
the interests, and violating the rights of the minority.

j

Whatever may be the case up to this time with regard
to the working of the general Government and Constitution
of the United States,

it

is

indisputable that in the indi-

vidual States the complaints are frequent of the exercise
of this species of tyranny by the majority which, for the
* Vol.

ii.

p. 250.

and Letters of Kiebuhr,
i Federalist, No. 10.

f

Life

vol.

iii.

p. 119.

London, 1852.

308

NOTES.]

time being,

may

wield the powers of the State Govern-

ment.

Mr. Justice Kent argues strongly against the sudden
changes in legislation in the individual States, which the
alternate succession of opposite parties to power brings

with

each supported, perhaps, only by narrow majorities,
office but for a short period.
He says *

it,

and holding

:

"A mutable legislation is attended with a formidable train
of mischiefs to the community.

It

weakens the Govern-

ment, and increases the intricacy of the laws, hurts
lessens the value of property, and

it is

credit,

an infirmity very

incident to republican establishments, and has been a constant source of anxiety and concern to their most enlight-

A

ened admirers.

disposition to multiply

and change

laws upon the spur of the occasion, and to be making constant

and

restless experiments with the statute code,

seems

to be the natural disease of popular assemblies."

And

he commends the new Constitution of Rhode Island,

adopted in 1843, for
"

The

its

tendency

Constitution of

Rhode

to

prevent those

evils.

Island, which was orga-

nised and went into operation in 1843, has constituted the

Senate of that State upon conservative principles, while
the House of Representatives

is

constructed upon the basis

of population, giving to each city

number

tion in a ratio to its
is

and town a representa-

of inhabitants.

composed of only one member from each

The Senate

city

and town,

so that the legislative power cannot be wielded by over-

whelming numbers in a few great manufacturing towns or
cities, to

the oppression of the agricultural towns.

It is a

salutary and provident check to the tyranny of majorities

over minorities, "f
* Yol.

f

Vol.

i.
i.

of his Commentaries, p. 227.
p. 227, note.

NOTES.

The
paper,
plaint

which I take from a recent American

following,
is

a somewhat curious instance of an opposite com-

— opposite

in terms, but the

which shows how naturally
tisfied

309

men

same in substance

are disposed to be dissa-

with laws imposed upon them summarily by narrow

majorities,

and which they may hope

by some

shortly,

equally narrow majority, to repeal.
" Ohio, July, 1853.

"

One hundred and

eighty-five thousand electors in this

State of Ohio have (by their

chosen

to

and

differences

divisions)

by one hundred and seventy

be governed

thousand for some years past.

The minority have ridden

rough-shod over the majority, fettering them

....

robbing them by unequal taxes," &c, &c.
I observe, also, in the American papers, complaints that
the " Maine Law," as it is called, forbidding the sale of
spirituous liquors, except under certain circumstances, is

being forced upon the people of some States by small
majorities, in spite of a strong reluctance to

of minorities,

it on the part
on the ground, among others, that such a

law exceeds the true province of
of

New

four

In the State

legislation.

York, this law passed the Senate by a majority of

only.

In Rhode

democratic majority

is

Island
said to

it

was

carried,

have appointed

but the
officers

who prevent its being executed. "In
Boston, its effect is defeated by the number of licences
granted. The new Legislature, chosen in November, 1852,

hostile to the law,

sustained the law.

of

make

An

attempt to repeal

it failed,

and a

more stringent failed also in the House
Representatives the numbers were equal, and it was lost

bill to

in the Senate

The

it

;

by one vote."

particular law

now

minorities, yet forced

exciting the disapproval of large

upon them in

opposition, as they

310

NOTES.

think, to all sound precedent,

is

of comparatively little

may

importance, except as illustrating the principle, which

be at present contemplated at work on a far larger scale

and on

vital points, in the rapid

advance of pure democracy,

even in the older States, over the old mixed and balanced
principles of constitutional government, with all the con-

sequences of
volved.

and external policy therein

internal

This change must be

party opposing

it,

all

the

more painful

because brought about in

many

in-

the

to

instances

by narrow majorities and within a short space of time. It
may be submitted to, under the conclusion that it is, in that
country, a part of " a general and inevitable law" of social

and

political

change

;

but

it is

not the less discordant to

all

the feelings, habits, and opinions hitherto recognised as the

foundation of their government, and as giving
to the respect

and confidence of the world.

it its

title

Its ulterior

consequences are beyond the ken of the present generation.

They might be

calculated with

somewhat more confidence

were not the problem complicated by the continual addition to the population of the

numbers

United States of such large

of the worst subjects of

European Governments

men bringing with them the most embittered feelings, and the
most

The

false

and pernicious theories of

politics

and

social life.

actual spread of ultra-democracy in the United States

contradicts the theory,

and has

falsified

the expectation,

that these importations of extravagant opinion and per-

verted principle will be absorbed and neutralised by the

sounder elements with which they mix.

many

They

find too

congenial ingredients, to which they but add a

vigour.

It

presume

to

in this ultra-democratic predominance, or resistance.

De

new

must be many years yet before any one can
say fohich is the most probable
acquiescence

M.

Tocqueville has already said that "if the free institu-

tions of

America are

to

be destroyed,

it will

be owing

to

NOTES.

311

the tyranny of majorities, driving minorities to despera-

The

tion."*

resource of minorities under such circum-

stances has ever been, through all periods of history, one

only
the surrender of their own liberties to some one
man, capable of defending them against a greater oppression
and the easy and natural steps by which, in pure
;

democracies, this transition takes place, has been lately
described with philosophical accuracy by Dr. Lieber, Professor of History

and of

Political

Civil Liberty

Economy

Philosophy and

in the State College of South Carolina, in his

and Self-Government."f

work "

On

Professor Lieber

says truly " That the multitude are necessarily led by a

by one

few, or

and thus we meet in history with the

;

man

invariable result that virtually one

absolute power of the people

is

rules

where the

believed to exist.

short interval, that one person openly assumes

all

After a
power,

sometimes observing certain forms of having the power of

The people have

the people passed over to him.

been familiar with the idea of absolutism
accustomed
resides

it is

to

believe

;

already

they have been

the public power

that wherever

absolute and complete

;

so that it does not

appear strange to them that the new monarch should possess the unlimited

power which actually resided in the

people or was considered to have belonged to them. There
is

but one step from the

tout-puissant'),

emperor

if

'

all-powerful people' (the 'peuple

indeed

all powerful."]:

it

amounts

And he

to

a

step,

to

an

intimates that the changes

that have actually occurred in history, from democracies,
to absolutism in the

hands of one man, are attributable

to

the fact that the people "consciously or instinctively"

*

De

la

Democratic en Amerique,

f London, 1853, p. 331.

X Page 330.

vol.

ii.

eh. 7.

312

NOTES.

surrendered their liberties, " because the ancient institutions

had become oppressive."

Note IV.
There

is

(to

Chapter XIII.)

no circumstance which

is

more

directly pre-

paring the way for the transition above-mentioned (from
ultra-democratic tyranny, to absolutism in the hands of one

man) than the growing habit
the wide-spread anxiety

of external aggression,

among

and

the democratic party in

the United States to take a part in the affairs of Europe.
It

is

superfluous

to refer

to

the solemn warnings be-

queathed by Washington, and by
revolution, on this

momentous

that the fellow-countrymen of

all

the great

subject.

From

Washington

men of the
moment

the

act in opposi-

tion to that advice, they will have passed a turning-point

in their history,

beyond which they

will

have before them

" sea without shore."

The authors

of the " Federalist," seeing in the possi-

bility of internal

war between the individual States the
all their reason and

great danger to liberty, employed

eloquence in softening down the causes of difference, and
in pointing out the inevitable consequences should hostilities unfortunately arise.

Their arguments apply with even

greater force to the consequences which would ensue from
their

involving themselves

with foreign powers

by an

aggressive policy, which those powers would feel compelled
to resist.

The

paper, No. 8, attributed to General

Ha-

milton, urges that war, or the apprehension of war, which

requires a state of constant preparation, infallibly produces

NOTES.

313

the necessity for standing armies; that States having
recourse to thern, and to " a more regular and effective

system of defence by disciplined troops and by

fortifica-

must at the same time " strengthen the executive
arm of Government in doing which their Constitutions

tions,"

;

would acquire a progressive direction towards monarchy.
It

is

of the nature of

war

to increase the executive at the

expense of the legislative authority."*

"

But

in a country

where the perpetual menacings of danger oblige the Go-

vernment

be always prepared

to

must be numerous enough

to repel

her armies

it,

The

for instant defence.

con-

tinual necessity for his services enhances the importance
of the soldier,

and proportion ably degrades the condition

The

of the citizen.

the

military state becomes elevated above

civil. "f

General Hamilton distinguishes the case of Great Britain from that of the military powers

on the Continent,

and shows that our insular situation and the

spirit of

government expose us

But

no such danger.

and the best virtues are driven from

office

intrigue or corruption, or by the violence of the press
of party

our

if it

be

words of Mr. Justice Story, that " the best

true, in the

talents

to

;

" if

by

and

the complaints so often uttered in the United

men

of cultivation, of high principle, and mawisdom are more and more indisposed to the duties
political life, are well founded, then must the tendency

States, that

ture
of

increase to select military

men

for office, if for

no other

reason, at least for this, that they will have had

experience in

affairs,

and know how

to

govern men.

more

And

the necessity of being governed, will, irrespective of the

and a military name, be more
and more pressing upon the people of the United States,
aspirations after conquest

*

Page

43.

t

page

45.

P

314

NOTES.

in proportion as ultra-democracy extends its dislocating

and disturbing influences

;

and while " elevating the mi-

state above the civil" in opinion, will lay the sure

litary

foundations of

its

predominance in real power.

Note V.
The

(to

Chaptek XV.)

great constitutional check upon the tyranny of ma-

independence of the judiciary), referred to by
Mr. Justice Kent in the following passage, has since, as we
have seen, been entirely abolished in more than five-

jorities (the

sixths of the individual States,

and

is

threatened in

ttie

Constitution of the United States, by the course of events

and of public opinion
"

M. De

tutions of

:

Tocqueville

America are


is of

to

opinion, that if the free insti-

be destroyed,

it

will

be owing

to

the tyranny of majorities driving minorities to desperation.

The

majority constitutes public opinion, which becomes

a tyrant,

and controls freedom of discussion and inde-

pendence of mind.
tion,

This

is

his

view

of

the

ques-

and English writers on the institutions of society in

this country have expressed the

same

opinion.

If there

was no check upon the tyranny of legislative majorities,
the prospect before us would be gloomy in the extreme.

But

in addition to the indirect checks of the liberty of the

press,

and

and

of popular instruction,

local institutions,

and of manners,

religion,

there are fundamental rights de-

clared in the constitutions,

and there are constitutional

checks upon the arbitrary will of majorities, confided

to the

and independence of the judicial department. M.
De Tocqueville seems to be deeply impressed with the

integrity

NOTES.

315

dangers in a democracy, of the corrupting and controlling

power

of disciplined faction,

and well

most dangerous and tyrannical of
political craft.

The

may

lie

The

be.

crafts is party or

all

equal rights of a minor party are dis-

regarded in the animated competitions for power, and

if it

were not for the checks and barriers

have

to

which

I

alluded, this would fall a sacrifice to the passions of fierce

and vindictive majorities."*
"

Without independent judges," says Mr. Justice Story,
would become a democracy with un-

" the Constitution

limited powers."!

Professor Lieber, in his work above referred

to,

"

On

and Serf-Government," denounces the practice of the election of judges by the people in the terms
which it deserves
Civil Liberty

:

"

As

to the election of judges

by the people themselves,

which has now been established in many of the United
States,

founded, in

it is

my

opinion, on a radical error

the confusion of mistaking popular power alone for liberty,

and the idea that the more the one

is

increased, in so

a higher degree will the other be enjoyed

no matter what name be given to
alone,

it, if

it

;

much

as if all power,

sways as power

were not absolutism, and had not the inherent

tendency, natural to
strength.

all

power, to increase in absorbing-

All despotic governments, whether the abso-

lutism rests with an individual or the people (meaning, of
course, the majority), strive to

dent on themselves.

lute democracy has done it." |

the

first

and

make

it,

and every abso-

"Where

the people are

chiefest source of all power, as is the case

* Kent's Commentaries, vol.
f Story, vol.
J

the judiciary depen-

Louis XIV. did

i.

p. 482.

i.

p. 450.

Edit, of 1853.

Page 184.

p 2

316

NOTES.

with us, the electing of judges, and especially their election
for a limited time,

is

nothing less than an invasion of

the necessary division of power, and a bringing of the
judiciary within the influence of the power-holder."*

Against the practice of electing them for short periods
and paying them " illiberal salaries," Professor Lie-

only,

ber directs some strong arguments, tending to prove that
it may for a time be delayed, must
ultimately be the inferiority of the character and abilities

the result, however

of those who occupy the judicial bench, the consequent
jeopardy of true freedom, and the loss of that protection
which every honest citizen has a right to expect from the
upright and able administration of the law.

Note VI.

By

chapter 9 of the Acts of Massachusetts, 1843, the

Senate and the House of Representatives concurred in re-

ducing the salaries of the principal public

officers of

the

and among them, those of the judges of the Supreme Court (together with the State judges): the Chief
Justice to 3000 dollars (£600), the Associate Judges of
State,

the Supreme Court to 2500 dollars.

In the inaugural address of Governor George N. Briggs
His Excellency dwells at some length, and with

for 1844,

many

expressions of public congratulation, on the great

progress in wealth

made by the small and

naturally barren

State of Massachusetts, especially in recent years, and he
* Page 185.

NOTES.
then turns, "from a sense of
tion of salaries

317
duty," to the reduc-

official

made by the Act

refers to the 29th Article of the Bill of Eights,

that "it

He

of the previous year.

which says,

essential to the preservation of the rights of

is

every individual, his

property,

life, liberty,

and character,

that there be an impartial interpretation of the laws

administration of justice.
to

be tried by judges as

humanity

as the lot of

" the judges of the
offices as

and

It is the right of every citizen
free, impartial,

will

admit

;

"

and independent

and accordingly, that

Supreme Court should hold

their

long as they behave themselves well, and that

they should have honourable salaries, ascertained and established

by standing laws."

The Governor then proceeds

to

show, that, " by the

Commonwealth," the above

established laws of the

salaries

had been respectively 3500 and 3000 dollars, and he
argues with great energy, that " permanence in their appointments," and "honourable salaries," were both essential to

the freedom and impartiality of judges, and that

low and inadequate salaries are not "honourable"
Their

salaries,

he

says,

had been

left

unchanged

salaries.

for sixty

by "more than sixty* different Legislatures."
His Excellency warns the Legislature against the con-

years,

sequences of yielding to this "false economy," and inti-

mates that
of faction.

it

has

its

"When

origin in party feeling

and in motives

the open and manly champions of

equal and just laws sink into the designing advocates of
party,

and the divided masses range themselves under
the morals of the community

their selfish leaders,
suffer,

jority

and

.

.

"A mamere party purposes, and

liberty itself is endangered."

which uses

its

power

for

* Constitution of Massachusetts, March, 1780.

28th November, 1780.

.

.

First

Act passed

318

NOTES.

disregards the interests and tramples on the rights of the
minority,

a despotism.

is

sive because

it is

In 1853 the

salaries of the

ranged from 1200

from 2000

It is

2000

to

3000

to

less odious

and oppres-

dollars

Note VII.
The excuse which

judges in twenty-one States

dollars (£250 to £400); in five,

in California, from

dollars;

no

wielded by many, instead of one hand."

:

in four, from

2000

(to

to

3000

to

6000

10,000 dollars.

Chapter XV.)

have commonly heard assigned for

I

the increasing practice of taking away the appointment of

judges from the Executive in the individual States, and
giving

it to

the Legislature or to the people,

is,

that the

power of appointment by the Executive was abused
political

for

purposes or personal objects, and that the Execu-

tive could not, as a rule, be trusted to

ments with

make

these appoint-

and with a paramount regard

fairness,

fitness of the individual for the duties of so

to the

important an

office.

If this general imputation was unfounded, a great political

If

wrong has been educed from great personal

it

was true,

trigue had, in

a lamentable proof that political in-

many

instances, placed in the position of the

Executive of a State,

men whose moral

them undeserving of that high trust.
But the power of appointing judges
power in reference
which

it is

injustice.

it is

to

qualities rendered

is

the administration

not the only
of justice, of

sought to deprive the Executive in

individual States.

A

many

of the

strong opinion appears to be gaining

NOTES.
ground, that

will

it

319

be expedient also to deprive them of

the power of pardon.

Dr. Lieber, at

164 of his work above quoted, thus

p.

expresses himself on this subject
"

The only

vetitive

[?J

tunately

it

power,

the case of pardon, and most unfor-

is

used in an alarming degree, against the

is

supremacy of law and the
so frequent in

stability of right

many

hostile things

essential

parts of the United States, one of the

now

at

government of law.

fect

—both

I consider the indiscriminate pardoning

to civil liberty.

most

:

case in which our executives have a real

work

in our country to a per-

In the only

case, therefore, in

which we have a real veto power, we ought greatly

to

mo-

dify it."

He

pursues this question in a paper written by himself,

and published by the Legislature of
he gives in his Appendix.*

much

New

York, and which

In this paper he goes into

detail with respect to the facts in the various States,

the opinions of

many

persons of authority regarding them,

and the suggestions made

for

some

alterations

which might

guarantee the community against so serious an abuse. Also,
after referring to

De Beaumont,
ful

the work of

MM. De

Tocqueville and

in 1832, in which they expose " the fright-

abuse of the pardoning power in the United States in

general," and after quoting a statement "that the

New

York Committee had ascertained that there are men who

make

a regular trade of procuring pardons for convicts, by

which they support themselves," he does not hesitate

to

add the following grave accusations against the governor

Union —
we have now to add the still more
which we would pass over in silence if our

of one of the " large" States of the
"

To

this statement

appalling fact,

* Pages 390-408.

:

320

NOTES.

duty permitted

it,

of a large State

— a State

discipline

money

amongst the foremost

—was openly and widely accused
We

for his pardons.

whether

state

that but a short time ago the governor

this

state of things

have

it

in prison

of having taken

not in our power to

be true or not, but

it is

obvious, that a

which allows suspicions and charges so de-

grading and so ruinous to a healthy condition of public
opinion, ought not to be borne with.

shows that leaving

It

the pardoning privilege, uncontrolled in

any way,

single individual, is contrary to a substantial
of law,

To
"

and hostile

this

to a

to

a

government

sound commonwealth."*

he subjoins the following note

:

While these sheets are passing through the

press, the

papers report that the governor of a large State has par-

doned thirty criminals, among

whom

were some of the

worst characters, at one stroke, on leaving the gubernatorial chair."

Among

the conclusions which Dr. Lieber proceeds to

draw are the following:

"

That a wide-spread abuse of the pardoning power
exists, and has existed at various periods.
"

That the abuse

mitous
"

of the pardoning

That the Executive in our country

in the ordinary course of things,

him

power produces

cala-

effects.

it

is

so situated, that,

cannot be expected of

that he will resist the abuse, at least that he will not

it in many cases."
The individual States are ever anxious to keep alive the
memory of the fact that they are sovereign States. Many
one
of them number upwards of a million of inhabitants

resist

;

upwards of three millions. At their head the type of
that sovereignty, the symbol of their independent exist*

Page 397.

NOTES.

321

ence, the assertor of the majesty of their law, the repre-

sentative

of

dignity,

their

by their

placed,

and personal

collective

suffrages, their

executive

officer,

many

of those exalted public servants the

accusation, that for the sake of obliging
tisans, or for the sake of a

recklessly throw back

is

calumny has

Yet, throughout the Union, either

Governor.

basely cast upon

their

some

political par-

few hundred dollars, they will

upon

society

its

worst criminals;

or a grave conviction is establishing itself in the public

mind, of the necessity of removing from them the snare,
arising either from the smallness of their incomes, or their

precarious tenure of power, which tempts to such a degrada
tion of themselves,

The

exceed 1500 dollars
of one,

and of the

they hold.

office

salaries of the governors of thirteen States do not

4000

dollars

;

;

of fifteen,

of one,

from 1500

6000

dollars

to
;

3500

dollars

;

of California,

10,000 dollars.

Note VIII.
As

(to

Chapter XVI.)

introductory to some sound opinions of Mr. Justice

Kent, on the subject of the transmission of property in the

United States, * I add the substance of an elaborate note
in which he traces the current of opinion upon that question in ancient

"

The

and modern times.

transmission of property by hereditary descent,

from the parent

to

his children,

is

natural affections, but the distribution

the dictate of the

among

the children

has greatly varied in different countries."
*

Commentaries,

vol. iv. pp.

374-381.

p 3

322

NOTES.

" If

some have thought that a

'

natural' equality

'

be-

longed to the lineal descendants in an equal degree,' others

have attached more importance

to the fact of the eldest

son being the "natural substitute for the want of a paternal guardian to the younger children.'
"

The law

of

Moses gave the

"

eldest son a double por-

tion."

" In Athens the males took equally, and were preferred
to females."

"

In Rome, the law of the Twelve Tables, in cases

of intestacy, admitted equally males

and females

to the

succession."
" After

various changes, excluding and including fe-

males, Justinian, by bis 118th Novel, admitted males and

females to an equality in the right of succession to intestates,
"

and preferred

The law

lineal descendants to collaterals.

of descent in the provinces of France before

the Revolution of 1789, was exceedingly various, and far

exceeded in variety that of the several American States.
"

In the southern provinces (pays de droit

succession to

intestates

ecrit)

was generally according

118th Novel of Justinian, to

all

to

the

the

the children, male and

female equally.
"

But in the other provinces (pays

much

Coutumier de France

Nom

coutumiers) there was

difference even in the lineal line.

des Gaules,'

it

In the

et des Provinces,

'

Nouveau

connues sous

le

was stated that the customs amounted

in some, the eldest son took the entire estate.
In most of the provinces he was allowed advantages more

to 547.

or

less

considerable.

were excluded

;

male children.

and

In some, the married daughters

in others, unmarried daughters, as against

In the

collateral line, the modifications

diversities of succession

were

infinite.

NOTES.
"

The

Constituent Assembly of 15th

decrees of the

1790, and 8th April,

March,

323

1791,

abolished the

first

and preference of males, in the

rights of primogeniture

succession to intestates' estates, following in that respect

law of Justinian

the

changes,

of

and

;

retrospective

the French law of

justice,

regulated by the

'

a distressing series

after

confusion,

decrees,

and

in-

succession was permanently

Code Napoleon;' following the

'

Novel'

of Justinian as to the doctrine of representation in the

descending line (Code

making the
" In

No. 739, 740, 745), but

Civil,

distribution compulsory in all cases.

many

the

of

South German States, the Code

Napoleon has been retained

by the French

in force since its introduction

at the period of their conquests, as

on the

Ehine, in Luxemburgh, in the Grand Duchy of Nassau,

and
"

in

in parts of Westphalia.

In Prussia and Austria the law varies greatly, inclining

some provinces more towards the retention

of the in-

heritance by the eldest or one of the other sons, in other

provinces towards

its

subdivision.

" In Denmark, by an ordinance of 1769, primogeniture

gave a

"In

title to

a moiety of the estate of an intestate."

Spain, the law of equal partition applies, except

where estates are fettered by an
are, the

law of equal partition

consequence."*

.

entail,
is

and

as nearly all

of comparatively little

.

" In several of the American colonies, before the Revolution, the

English law of primogeniture prevailed in the

distribution of the estates of intestates.

Rhode Island

New

until the year

Jersey, Virginia, the

until the

Revolution;

1770

;

and

in

New

York,

two Carolinas, and Georgia,

and in Maryland
*

It prevailed in

Page 381.

until 1715.

324
"

Iii

NOTES.
Massachusetts,

Connecticut,

eldest son of an intestate

and Delaware, the

had only a double portion, and

when the law

this continued in Connecticut until 1792,

giving the eldest son a double portion was repealed.

In

Pennsylvania, by the law of 1683, the law of primogeniture was abolished, but the Act

gave the eldest son a

still

double portion, and so the law of Pennsylvania continued

The Act

until 1794.

of Massachusetts, in 1692, did the

same.
" In the

'

Abstract of the

lished in 1655,

it

Laws

of

New

England,' pub-

was ordered that inheritances, as well as

personal estates, should descend to the next of kin of the
intestate, assigning a double portion to the eldest son.

"

The

old

tion as being

New England
'

laws spoke of this double por-

according to the law of nature and the dignity

of birthright.'"*
"

The Ordinance

of Congress for the

government of the

North-Western Territory,! provided that the

estates, with-

in the territory, of persons dying intestate, should go to

the children, and the descendants of a deceased child, in
equal parts.

.

.

.

But

law was

this

future legislative alteration, though
still

to

it is

be subject to

presumed

to

be

the general law of descent in all those States and

districts

comprising what, in 1787, was the territory of the

United States north-west of the river Ohio, except in the
instances hereinafter mentioned."

"

With

respect to the general law regarding the power

of creating deferred

estates, it is

of the Union, except

New York,

the same in

all

the States

namely, that an executory

device of real or personal estate

'

is

good

(as in

England)

if

limited to vest within the compass of twenty-one years after
*

Mass. Historical Collections,

f 13th

July, 1787.

vol. v. p. 178.

NOTES.
a

life

or

was that

a.d. 1830,

power

The only

in being.'

lives

New York

law of the State of

325
alteration

made

in the

by the revised statute of

this statute will not allow the absolute

of alienation to be

suspended for a longer period than

during the continuance of not more than

lives in

being

allows of the limitation to any

num-

tico

at the creation of the estate."

"

The English law

ber of lives in being,

and

for

twenty-one years and nine

months afterwards."

Thus

far as regards the general course of

law on this

subject in most of the civilised countries of the world in

ancient and

On

modern times.

the questions of social

policy and abstract right involved in these various and opposite laws

and customs, the opinions

of

men

are likely to

continue as various as the laws and customs themselves.

On

the one hand,

natural equity

is

it

Also,

inheritances.

will be

argued that the feeling of

better satisfied by the equal partition of

when regarded from

the political point

of view, the practice of equal partition agrees

the

theory that an universal participation

power

is

more with
in

political

a matter of right, and not a question of ex-

pediency.

On

the other hand,

it is

denied that there

any such principle of natural equity involved, as

blish a right or a claim on the part of the children to

equal partition of the father's property
tion of discretion,

;

that

it is

is

to esta-

an

a ques-

and of practical wisdom, with a view

to

the best interests and the ultimate welfare of the whole
family
in

and that the experience of successive generations

;

any particular country

practice

most suitable

own country

is

and

the index and the guide to the

The

practice of our

seen to tend to the accumulation of capital,

and consequently
prises,

is

to that country.

to all that

power, to

to all those great

all

those vast enter-

achievements, which accumu-

326

NOTES.

lated capital can alone produce
agriculture, stimulates

;

improves and extends

it

and sustains manufactures,

commerce through every

sea,

and brings back

diffuses

to the doors

and

of a whole nation, prosperity, independence, wealth,

In a higher point of

every element of material comfort.
view,

gives opportunities for the purest and most refined

it

enjoyments, leads to the

most elevated intellectual and

moral culture, and carries forward civilisation

to

bound attainable under the guidance of and

in subordina-

The

tion to that culture.
in

tries,

its

different

many

ferent results in

phase of the

contrary practice of other coun-

degrees,

seen to

is

is

local

effort to

extinguish her liberties.

same

All independent

influence have

away by that law, and consequently
of the

dif-

the subdivision of

there compulsory.

and

centres of power

lead to

France presents one

particulars.

effect of the principle of

inheritances, which

the utmost

it

been swept

has cost no great

Under

the operation

Grand Duchy
Luxembourg, the Rhine

law, poverty has stricken the

of Nassau, the

Grand Duchy

of

Provinces, and every portion of

Mr. Justice Kent

it prevails.

opinion upon

the

German

subject, which, while

other countries whose

territory

where

states very fairly his

law or custom

candid
differs

own

towards

from

his

own, admits the principle that, even in his own country,

the custom of "keeping inheritances unbroken"

in a material point of view, desirable.

many
that

it

is

There are very

persons in his country who do not hesitate to add

would be desirable in a moral and

political point

of view also.

Mr. Justice Kent's words are
" The policy of the measure
stances,

and

is to

:

will

depend upon circum-

be considered in reference to the state of

society, the genius of the

government, the character of the

NOTES.
people, the
tory,

amount

327

of cultivated land, the extent of terri-

and the means and inducements

part of the country to another."

He

proceeds to say,

.

emigrate from one

to
.

.

" without undertaking to

form

an opinion as to the policy of primogeniture under the
monarchical government of England,"

that in his

own

country at least,

"The

extraordinary extent of unsettled territories, the

abundance of uncultivated land in the market, and the
constant stream of emigration from the Atlantic to the
interior States,

operate sufficiently to keep paternal in-

The tendency

heritances unbroken.

of these causes, as

experience in the eastern States would seem to confirm,
rather to enlarge than to abridge

them

;

and

if

is

the inheri-

tance will not bear partition without injury to the parties
interested, the eldest son in

some

whole entail

to elect to take the

of the States is allowed
to himself,

on paying to

the other heirs an equivalent to their shares in money, and

on his

refusal, the

same

privilege

is

allowed to the other

sons successively."*

Note IX.
The above review

(to

Chapter XVI.)

of the actual state of the law of suc-

cession in the United States, suggests considerations to a
certain

extent at variance with the popular impressions

on that subject.
It is undoubtedly true that the general practice in re* Pages 384-5.

;

328
gard

NOTES.
to the succession of

property in that country has, since

the separation from England, been to distribute

among all
ville, in

it

And to this practice, M. De

the children.

by will
Tocque-

one of the most instructive chapters of his masterly

work (Chapter

on the Social State of the Anglo-

III.,

ascendancy of the

Americans), attributes that complete

democratic element, which, having
in the old States of the east

the whole west, where

it

first

established itself

and south, has now embraced

must long bear sway without the

M. De

shadow of a competitor.

Tocqueville expresses

" astonishment that public writers, ancient and modern,

have not attributed

the laws respecting succession a

to

greater influence over the

march

of

human

affairs."

He

says that the legislator, after having disposed of that law,

may, in reference

to the basis of

for after once giving the

machine

acts of its

own

reference to the state

power, repose for ages

impulse to the movement the
accord.

And

with no disguised

of things in his

own

country, he

represents the action of that principle " as dividing, distributing,
to

scattering,

pieces,

or

resists its passage

on the
is

soil,

power;" "pounding

property and

bursting into fragments
;

now

until the only substance

that of a

everything that

raising itself up,

moving and impalpable

it

now

prostrate

presents to sight

dust,

on which

sits

democracy."

That

this is the

true solution of the rapid spread of

purely democratic legislation in
as recorded

all

the individual States,

by Mr. Justice Kent, in the passages I have

quoted, and as seen in what has occurred since he wrote in

1844, there can be no room to doubt; and

it

remains for

time to show how long a highly-conservative system of
general government can consist with a thoroughly democratic

political organisation of

the individual States.

NOTES.

But other

reflections

are

329

suggested by a reference to

the actual state of the law as to successions in the United
States, to

which I venture

to think that

some

force is to

be attributed.

The power

of entail

still

exists in all the States, almost

precisely as in this country.

One

has adopted a limitation upon

State only,
of

it,

New

York,

no essential import-

ance.

It has been seen (Chapter

I.)

how

strongly the feeling

in favour of entails prevailed in nearly all the States in

the early days of their colonial history

— in a few of

even more so than in the parent country

;

some instances the law dividing the estates of
among all the children was not adopted until

The

separation.

I think

it is

intestates

the

after

principle, moreover, of preferring the

eldest son in those cases

adopted in nearly

them

and that in

all

is still, to

a certain limited extent,

the laws of the individual States.

impossible to deny that these facts indicate

the depth and tenacity of the old principle, and that there
is

something in

it

that clings to the convictions of men,

notwithstanding the plausible theories of more general
benevolence, and the sanguine hopes of better government

and more

diffused

prosperity,

by which they had been

allured.

The
perties

fact

is,

that of late years

accumulated

some

northern States, been distributed by
accordance

of the largest pro-

by commerce have, even
will,

very

with the custom of primogeniture.

southern States

(I

the

in

much

judge from the expressions of

many

gentlemen from that part of the country) no secret

made of the
modern law

in

In the

is

desire to counteract the united effects of the
as to intestacy,

and the course of events,

by keeping the old family estates

as

much

as

pos-

330
sible

NOTES.

And

unbroken.

United States

open

it is

to observe

to every traveller in the

how completely

the rapidly-accu-

mulating wealth, arising from the vast resources of that
country, gives to the social

wealth,

all,

or nearly

all,

life

of the actual possessors of

the characteristics that

could

it

have in that country under the most rigid custom of primogeniture.

M. De Tocqueville speaks with

evident regret of the

consequences of the law or custom of subdivision of inheritances, in destroying family attachments

to places

and

"

an imperishable witness of the past

and a precious pledge

for the future;" in extinguishing

people

;

in

removing

one great stimulus
dissipating

to perpetuate virtue

and renown

;

in

the laboriously-collected stores of cultivation

and refinement, and obstructing the onward progress of
the highest civilisation, by continually compelling steps
that had been already gained to be retraced anew.

He

attributes

to

it,

also,

and a

a deeper moral taint,

greater wrong to the highest interests of mankind.
says,

and says

minds

truly, that

of the wealthy

when you have destroyed

and prosperous

all

those more ele-

vating influences which can so powerfully affect the

you leave

heart,

it

to

He

in the

human

be absorbed by selfishness, or

to

limit its sympathies within the narrow field of one genera-

And when you have removed

tion.

of love

and reverence, and

all

all

the higher objects

the purer incentives to exer-

you leave little more than the basest of all incentives,
the love of money.
Strong is the language of Goldsmith in denouncing

tion,

those who,
" polluting honour at

its source,

Give wealth to sway the mind with double force."

In

this country

we hold the united

benefits derived from

NOTES.
all

331

the inheritances of antiquity and

all

the material, intel-

and moral conquests of modern times, by the tenure
of making them all subservient (as far as human wisdom
permits) to the highest interests and the individual happi-

lectual,

ness of the whole body of the community.

Note X.

to

I have said in the text (pp. 23, 86) that there is no need
repeat the well-known refutations of those theories

which

rest the claim to a participation in political

on " the rights of man."
abstract questions of

The

full discussion

government underwent

power

which these

end of

at the

the last century has finally disposed of them as matters of
practical value, in the convictions of all educated
this country.

men

But no one can be conversant with the

in

sort

of literature which for the last twenty years has been ad-

dressed to the passions, and which takes advantage of the

comparative want of knowledge of large masses of our
population, without seeing in
facility

new

it

another example of the

with which exploded errors can be revived among a

generation unacquainted with their previous existence.

I therefore offer this circumstance as the excuse for the

length of the following extracts.

may chance

to

writings of those

read this volume

who

dealt,

It

is

not every one

who has

at

who

hand the

with these questions when, in

the last century, they agitated the whole of Europe.

And

I venture to hope that no one will object to see, in con-

nection with the subject of this book, a few of those passages which were bequeathed to the admiration of posterity

332

NOTES.

by orators and statesmen who have placed the foundations

own

of our

system on the basis of true philosophy

political

and irrefragable reasoning.

The

following

real rights of
rights, as a

"

is

the eloquent exposition of Burke, of the

man, in contradistinction

member

of civil society

The pretended

tremes

;

to his

pretended

:

rights of these theorists are all ex-

and in proportion as they are metaphysically true

they are morally aud politically

false.

The

rights of

men

are a sort of middle, incapable of definition, but not impos-

The

sible to be discerned.

are their advantages

;

rights of

between differences of good
between good and
evil.

evil,

men

in

governments

and these are often in balances

compromises sometimes

in

;

and sometimes between

evil

computing principle

Political reason is a

subtracting, multiplying, dividing, morally,

and

adding

;

and not meta-

physically or mathematically, true moral denominations.
"

By

these theorists the right of the people

almost

is

always sophistically confounded with their power.

body of the community, whenever

meet with no

effectual resistance

;

are the same, the whole body of
sistent with virtue,

Men
is

and the

have no right to what

it

can come to

them has no

to

them

can

right incon-

prudence.

not reasonable, and to what

not for their benefit.
" Whilst they are possessed by these notions

to talk

The

but until power and right

first of all virtues,

is

act,

of the practice

of

it is

vain

their ancestors, the

fundamental laws of their country, the fixed form of a
Constitution whose merits are confirmed by the solid test
of long experience

national prosperity.

They have the

'

and an increasing public strength and

They

despise experience

rights of man.'

there can be no prescription

;

Against these, they say,

against these no argument

;

notes.
binding

is

mise

;

men,

these admit no temperament and no compro-

anything withheld from their

much
its

;

333

fraud and injustice.

no Government look for security

let

demands

full

The

so

in the length of

continuance, or in the justice and lenity of

tration.

is

Against these, their rights of

its

adminis-

objections of these speculatists, if its forms

do not quadrate with their theories, are as valid against

an old and beneficent Government as against the most
violent tyranny or the greatest usurpation.
They are
always at issue with Governments, not on a question of
abuse,

but

question

a

competency and a question

of

of title

" Far

am

I from denying in theory

heart from withholding in practice

—the

give or to withhold)

(if

men.

real rights of

their false claims of right, I do not

full as far is

my

I were of power to

mean

In denying

to injure those

that are real, and are such as their pretended rights would
If civil society be

totally destroy.

of

man,

all

his right.

made

the advantages for which
It is

advantage

made become

an institution of beneficence, and law

itself ie

only beneficence acting by rule.

to live

by that rule

between their

for the

it is

fellows,

Men

have a right

they have a right to do justice, as

;

whether their fellows are in

politic

They have a right to the
the means of making their

function or ordinary occupation.
fruits of their industry,

industry fruitful.
their parents;

to

to the

a right to the acquisitions of

nourishment and improvement of

to instruction in life, and consolation in
Whatever each man can separately do, without

their offspring

death.

and

They have

;

trespassing on others, he has a right to do for himself

and he has a right
with

all its

favour.

to a fair portion of all

combinations of

In this partnership

skill
all

and

force,

men have

which society,
can do in his
equal rights,

334

NOTES.

but not to equal things.

He

that has but five shillings in

the partnership, has as good a right to

hundred pounds has

five

it

as he that has

But he

to his larger proportion.

has not a right to an equal dividend in the produce of the
joint stock

direction

;

and as

to the share of power, authority,

which each individual ought

management

of the State, that I

the direct original rights of

have in contemplation the

must deny

man

civil

and

have in the

to

to

be amongst

in civil society

;

man, and no other.

for I

It is a

thing to be settled by convention.
" If civil society be the offspring of convention, that

convention must be

and modify

formed under

its

That convention must limit

law.

the descriptions of constitution that are

all

Every

it.

executory power are

its

sort of legislative, judicial, or

They can have no

creatures.

being in any other state of things

;

and how can any man

claim, under the conventions of civil society, rights which

do not as

much

as suppose

absolutely repugnant to
society,

civil

rules,

By

is,

this

.its

it ?

existence

One

— rights

and which becomes one of

that no

man

which are

of the first motives to
its

fundamental

should be judge in his own cause.

each person has at once divested himself of the

fundamental right of uncovenanted man, that

first

judge for himself and to assert his own cause.
cates all right to be his

own governor.

He

He

is,

to

abdi-

inclusively, in

a great measure, abandons the right of self-defence, the

law of nature.

first

Men

cannot enjoy the rights of an

That he may obtain

uncivil

and of a

justice,

he gives up his right of determining what

civil state together.

points the most essential to him.

some
of

liberty,

it is

in

That he may secure

he makes a surrender in trust of the whole

it.

"

Government

is

not

made

in virtue of natural rights,

NOTES.

335

which may and do exist in independence of

much

greater clearness, and in a

abstract perfection

and

it,

exist in

greater degree of

but this abstract perfection

;

By

practical defect.

much

is

their

having a right to everything, they

want everything. Government is a contrivance of human
wisdom to provide for human wants. Men have a right
that these wants should be provided for by this wisdom.

Among

these wants

is

reckoned the want, out of

to be

upon

civil society, of a sufficient restraint

their passions.

Society requires not only that the passions of individuals

should be subjected, but that even in the mass and body,
as well as

the

in

individuals, the

inclinations of

men

should frequently be thwarted, their will controlled, and

This can only be

their passions brought into subjection.

done by a poiver out of themselves, and not, in the exercise

and

of its function, subject to that will

which

it is

its

office to bridle

to those passions

and subdue.

In

this sense

the restraints on men, as well as their liberties, are to be

reckoned among their rights.

But as the

liberties

and

the restrictions vary with times and circumstances, and

admit of

infinite modifications, they

any abstract rule; and nothing

is

cannot be settled upon

so foolish as to discuss

them upon that principle.
" The moment you abate anything from
of

men, each

the full rights

govern himself, and suffer any

to

positive limitation

upon those

artificial

from that moment

rights,

the whole organisation of government becomes a matter of

This

convenience.

is

it

which makes the Constitution of

a State, and the due distribution of
of the

most

delicate

deep knowledge of

its

and complicated

human

nature and

powers, a matter

skill.

It requires a

human

necessities,

and of the things which facilitate or obstruct the various
ends which are to be pursued by the mechanism of civil
institutions.

.

.

336

NOTES.

"Nor

is

a short experience that can instruct us in

it

that practical science

because the real effects of moral

;

causes are not always immediate, but that which, in the
first instance, is

prejudicial,

moter operation, and
the

ill

effects it

happens

also

its

may be

excellence

excellent in its re-

may

arise even

The

produces in the beginning.

from

reverse

and very plausible schemes, with very

;

pleasing commencements, have often shameful and lamentable conclusions.

In States there are often some obscure

and often latent causes, things that appear

at first

view of

moment, on which a very great part of its prosperity
adversity may most essentially depend."*
Sir James Mackintosh, in the maturity of his great

little

or

powers, gave his full adherence to the principles established
in this profound

and comprehensive exposition of the founSpeaking of those abstract

dation of political government.

rights above adverted to, he says, that " such remote principles

shed too faint a light to guide us on our path, and

can seldom be directly applied with any advantage in

human

affairs."

He

proceeds to describe representation

as originating only in usage, that usage giving birth to

maxims which guide our judgment

in each particular case,

and which grow with the experience of their fitness and
" These," he affirms, " constitute the principles of
value.
the British Constitution, as distinguished, on the one hand,
from abstract notions of government, and, on the other,
from the provisions of law or the course of practice.
knowledge,' says Bacon,
in matter,

'

is

of all other the

and the hardliest reduced

political, as well as all

ciples alone are solid, orderly,
* Reflections

and

'

Civil

most immersed

axioms

to

other knowledge,

'

;
'

and in

the middle prin-

fruitful.'

on the Eevolution in France.

"f
Burke's Works,

Edit, of 1852, (Rivington,) pp. 198, 201.

t

Sir

James Mackintosh's Works,

vol.

iii.

p. 574, Edit, of 1846.

notes.

Note XI.

Much more might
it

337

(See pages 99 and 273.)

be said beyond -what I have thought

necessary to introduce in the pages above referred

to,

on

the subject of the representation in the Slave States, the
franchise of the free coloured people in the northern States,

and the small amount of the actual participation of the
latter in the political rights and privileges of their
fellow-citizens.

however, designedly abstain from the

I,

of slavery altogether.

subject

motives of those persons,

and great influence in

many

that

the

this

continual

of this country and of
of slavery, aids

what

greatly

many

persons in the United

expression

of

the

opinion

Europe generally on the question

is

called the Abolition Party,

when

therefore hastens the time

most

opinions of

far-seeing,

United

States,

this question,

many

and

slavery will be no more.

I have the strongest conviction* founded on what I
to be the

the

respect

them of high position
country, who think, and are

supported in that opinion by
States,

I

of

know

of the best, the ablest, the

and most benevolent persons in the
also, on the facts of the history of

—founded,

and on what

is

passing at the present time,

that this is an error.
It

is

amount

impossible

any amount of reasoning, any

that

of vituperation, can

add a feather's weight

to the

already almost overwhelming sense of difficulty and danger

which presses upon the thoughts of every individual

man

or

man

States, be
to a

of intellect

states-

and cultivation in the United

he slave-holder or not, when he gives his mind

calm survey of what

is

impending over his country in

;

NOTES.

338
relation to that

momentous

Less than thirty

question.

years hence there will probably be nearly 6,000,000 slaves
to be dealt with instead of 3,900,000,* with all the
difficulties arising

of combination, which

The

general

it

will be

will tell

unhesitatingly to

their persons,

you that they

live

his children

that

among

their slaves as a father

they trust

impossible to shut out.

vituperation launched at the system passes

by the heads of those who

among

added

from increased intelligence and means

care

their

and those of their wives,

daughters, and their infants

hardened reprobates who
the system, and

its

;

and

profit

it

is

;

their

property,

their

grown-up

laughed at by the

by the worse features of

occasional dreadful incidents.

Har-

rowing descriptions, lofty denunciations, elaborate arguments, are not needed by the one, and are scoffed at by
the other.

But they

are something more, and something

worse, than not needed.

Of the many agreeable sensations, and unexpected
and most gratifying convictions with which I was impressed
during my visit to the United States in 1851, one of the
most unexpected and most gratifying was that of finding
deep, how sincere, and how general was the natural

how

feeling of kindliness, of respect,

and

affection, of all per-

sons of any amount of culture and information, towards
the parent country.

The

hostile

and

of the press on both sides the water
tical theories, so

opposed

the remembrance of
policy,

all

to ours,

;

irritating criticisms

the social and poli-

under which they

live

they had suffered from our im-

our arrogance, and our injustice, in the last cen-

* The present rate of increase of the slave population, accord-

ing to the census of 1850, is 28'05 per cent in ten years. In
the previous ten years, from 1830 to 1840, the rate of increase

was only 23-8 per

cent.

notes.
tury,

and our unhappy

this,

have not been able

in this

early

part

of

to sever the ties of those natu-

deem most

sources of all they

inheritance from

we

country,

look with an

precious in their

Towards everything which,

the past.

are accustomed

to regard

with

re-

such persons in that country disposed

spect, I found all

to

collisions in the

which bind them to their birthplace, and

ral affections

to the

339

equal

and as ready

respect,

to

derive

from them the improving influences which we believe

them capable

of diffusing through the great

Approached, therefore, in the

spirit of

body of

society.

mutual respect, of

brotherly kindness, of friendly openness and frankness,
there

is

no subject on which an American of any cultiva-

tion is not
at

most ready

and consider

it

to enter,

with a disposition to look

from the point of view in which

it is

His sympathies are already with
acknowledge and to respond to them.

regarded in England.
us

;

The

we have but
violent

to

and unscrupulous portion of the press in

his

country (the worst being conducted or inspired by rene-

gades from ours,) may, and doubtless does, produce a very
different

state

of feeling

and opinion in the numerical

mass; but the expanded hearts and minds of the educated,
the reflecting, the cultivated, in their various degrees, are

untrammelled by any such unworthy influences, and meet
us fully

half-way in

any

demonstrations

respect and fraternal recognition.

But

do their spirits revolt against assumption.

more keenly,

of

genuine

in equal measure

And

all

the

in proportion to their desire to be understood

aright, do they feel the

unkind

criticism, the over-coloured

description, or the repelling sneer.

The

upon the less cultivated are
undue assumption on their part, and to

effects of these latter

to stimulate to

produce that exaggerated degree of self-assertion, from the

Q 2

NOTES.

340

fear of being undervalued, which is the subject of
in

remark

Europe.

The number
United States

of persons kindly affected towards us in the

is,

I

am

persuaded, very considerable, and

embraces a very large proportion of

all

that

vated and most estimable in that country.
I have not the shadow of a doubt

is

most

culti-

And upon them,

—and my

convictions are

founded upon correspondence, upon personal intercourse,

and upon what I have heard from the best sources

—that

the proceedings of the last two years in England, relative

have produced the most unfortunate

to the slavery question,

and most undesirable impression, and have, as
have been operative at
the time

when

it

will

all,

far as they

retarded, instead of advancing,

be possible to reopen that question in

the Slave States with a view to

its solution.

It is unfortunate that persons in this country,

there

is

whom

every disposition to respect, should throw away

their natural influence with the better-disposed classes in

the United States, by what

among them
grounds

is

it

is

looked upon by so

many

On

wider

as an unwarrantable assumption.
still

more

to

be lamented, in

its effect

in

keeping up and increasing that coldness and alienation,

and that exaggerated

common among
Both these
but

effects are

may be

still

self-assertion,

above adverted

to as

the less cultivated of their population.

bad enough in a

social point of view,

worse in their national consequences,

and making them
But beyond and above these

as predisposing to national irritations,

more

difficult to

be allayed.

incidents to that course of proceeding lies a reason against

such interferences, especially from this country, which

is

much weight

in

very generally overlooked, but which

is

of

the estimation of those most nearly concerned— it

each of the individual States

is,

and never allows

is,

it

that

to

be

NOTES.
forgotten that she

is,

341

a sovereign State, and as such

is

ever

jealously on the watch against any interference or dictation

No amount

from without in any shape.

of agitation in the

United States, or in any part of the world whatsoever, against anything that concerns her internal policy,
rest of the

can have any effect in compelling her against her will to

and the greater the agitation directed
more obstinately will she resist all move-

alter that policy;

against her, the

ment

until she

can exercise her own discretion in taking

own way.

the initiative with calmness and in her

adopt a less sturdy course would, they think, he

nounce their Saxon descent and character
perhaps even more than that,

met

for,

;

some

to

will

To
re-

add

judging from those I

with, there is scarcely one of the sons of the old

southern States who hesitates to

tell

you that they have

not got some of the best blood of England in

They

nothing.

New York and

will

them

for

remind you that the movement in

Pennsylvania, which ended in abolishing

slavery in those States, in 1819, began within themselves,
as

had been the case before in

setts,

Vermont, and Ohio.

New

They

Hampshire, Massachu-

will point to Virginia

and

Kentucky, where, years ago, measures for continuing or
granting

and

tucky,

facilities for

emancipation were

all

but carried

;

Maryland, where, as well as in Virginia and Ken-

to

it is

notorious that the value of the land would be

trebled were the slaves which taint their

soil,

and repel

the labour and capital of the north, gradually set free by

They

Acts of their Legislatures.

will

remind you, that

those movements, which were so nearly being successful

were spontaneous, and
and that they were checked

in the two States above-named,

emauated from themselves
in

mid

career,

;

and further progress made

for

a time

NOTES.

342
by the

impossible,

of

irritation

produced

feeling

by

the attacks, the taunts, and the interference of the Abolitionists.

But much

as they resent

their fellow-countrymen,

still

the

interference of

more do they resent

ours,

when obtruded upon them in a spirit of superiority, and
as if we had a right to take them to task.
There
if

you

is

a spirit, however, in which they will thank you

will enter

upon

ing subject in
for

vast

all its

them.

this great question with

down with them, and count the
them, as you cannot

Look

cost.

and complicated bearings.

fail to

Sit

at the appall-

do, at the hideous

Feel

problem

Feel with them at their stupendous

that lies before them.

Aid them with the whole stretch of your

difficulties.

mind and the whole
brother.

seem

to

force of your ability, as you would a
Point out every " lane of open water " that may

lead through that worse than polar agglomera-

Consider with them what expedients

tion.

the way

Suggest the
rience

what

for,

little

of your

palliatives

that

own

may

may have been good

country,

and

may smooth

mitigate, the

recall

crisis.

in the expeto

mind the

wiser counsels that were neglected and the hopeful opportunities that

were

lost.

Be humble

in your anticipations

of being a useful counsellor, in the recollection of your

whom the heavy w eight
must press day and night must know something about it, and of the times and seasons when to take
Soften down the asperities you may before
it in hand.
have had a hand in causing; help to bury them in oblivion;
encourage the opening of a new page, and the commenceown

errors.

Believe that those on

T

of the solution

ment

of action from a

new

starting-point.

Let

it

hence-

forward be a question not of general reasoning and declamation, but of practical detail.

Bend

all

the energies of

;

notes.
your mind upon that
to look with
efforts for

*

The

litionists,

343

and implore an All -wise Providence

;

compassion upon the past, and to bless the

a better future.*

first

disturbances, produced

took place in

New

by the measures

York, in 1834.

of the

Abo-

In 1835, lawless pro-

ceedings against persons belonging, or supposed to belong, to that
party, occurred in Baltimore,

Mississippi

and Missouri.

New

Orleans, and in the States of

In 1S37, President

Yan

Buren, the

who

in his public addresses adverted to the question of
slavery, expressed his determination " to resist the slightest interfirst

ference with

it

in the States where

tation of the subject,

and the

it

The continued

exists."

agi-

efforts of the Abolitionists to facilitate

the escape of slaves, produced, in 1850, the Fugitive Slave Law,

which has given tenfold bitterness to the feelings of the north,
and roused the south to declare that its repeal will be followed by
a dissolution of the Union.

How

are quieted on both sides, that

be made even in those slave
desire to lead the

way

is it possible,

until these feelings

and vigorous efforts can
States which once manifested a
any

real

in the further progress of abolition

?

In two at least of them the current has now completely turned.

Kentucky, in 1850, by a vote of 71,563

for,

and 20,302 against

Maryland, in 1851, and Yirginia in 1851, by a vote of 75,748

for,

and 11,060 against, adopted ultra-democratic constitutions (every
free white male of 21 years of age, resident from six months to
two years, having a vote) yet, in the two last, the General Assembly is altogether restricted from emancipating. In Kentucky, the
consent of the owner is required, or the payment of a full equivalent, and the removal of those emancipated from the State, the
latter provision adding greatly to the cost and difficulties.
I take
the above figures from "The American Almanack" (Boston), a
very useful compilation, to which I am much indebted.
;

344

NOTES.

Note XII.
The

expression in the

text

that the Con-

298),

(p.

commonly

asserted

in that country to be, in popular phrase, " the

best in

the world,"

need

any

United

the

stitution of

is

States

is

too well supported by

justification;

but,

perhaps,

every-day facts to
a few

instances,

showing that the expression has been countenanced by
high authorities, may not be without their value.
President Munroe, in his "Message" of 18*26, speaks
of the institutions of the United States as

"the happiest

the world ever knew."

President Harrison, in his Address of 1841, describes
their institutions as " far exceeding in excellence those of

any other people."
President Filmore, in his

"Message"

of 1852, asserts

that their Constitution, "though not perfect,

is,

doubtless,

the best that was ever formed."

A very useful

little volume on " The Constitution of the
with
United States,"
a " descriptive account of the State

Papers and other Public Documents" relating

Mr.

W.

Hickey,* has now reached

Prefixed to

it

are

copies

of several

its

fourth

to

it.

by

edition.

resolutions of the

Senate, ordering the purchase and distribution of upwards

24,000 copies of this work.

of

Remarks,"

p. xxxiv,

In the " Introductory

Mr. Hickey, speaking of the President

and the members of the two Houses of Congress, uses the
following words
"

The

:

intrinsic dignity of

whose

official

* Philadelphia, 1851.

character, in a

notes.

345

moral point of view, transcends that of every other legis-

much as our Constitution
human government."

lative assembly, in so

of every other

am

I

far

from referring

to it as a

excels that

matter of complaint

that the citizens of the United States should think and

speak of their Constitution as " the best in the world."

I

only wish to guard myself against being thought in the
least degree to

that such

is

have exceeded the

strict truth, in alleging

their claim, not to say, boast

;

therefore challenge all legitimate criticism,

exposition of facts which show

how

and that they

and every

fair

far their present prac-

and experience under that Constitution corresponds

tice

with

its letter

and

spirit.

Very different was the language

Washington

of

in speak-

ing of that document, when, in a letter to the President of
the Congress,* he recommended its acceptance.
His words are, " t?hat it is liable to as few exceptions as
could reasonably have been expected,

we hope and be-

lieve."

To the same

are his sentiments in the ex-

effect, also,

tract given last in this note.

The wisdom

of the truly great

men who framed

the

Constitution was too enlarged not to include the attribute

human

of humility, under the consciousness of
tions
real,

not to show them

difficulties

field of political science,

inferior minds.

which

Therefore

—the

his great predecessor
public,

John Adams, in

—in

and dangers on the vast

lie

beyond the horizon of

the same sober spirit as

second President of the Re-

his inaugural address,! speaks of

the Constitution " as an experiment

*

imperfec-

and their knowledge was too comprehensive and

;

September

17, 1787.

;"

" better adapted,"

+ March

4,

1797.

Q 3

346

notes.

indeed, " to the genius, character, situation, and relations
of this nation

and country, than any which had ever been

proposed or suggested," but not therefore the best in the
world, and for every one in

the inaugural

addresses

Jefferson and Madison,

And

it.

of

the

in a similar tone are

two

next Presidents,

who were the contemporaries

of

the great struggle, and were content to indulge large hopes

from the form of government that resulted from
out therefore pronouncing their

own work

with-

it,

the most perfect

or the only perfect effort of political wisdom.

There

is,

perhaps, no State paper ever written, more re-

markable, more touching,

more eloquent, more

full

of

pregnant thoughts and wise counsels, than " The Farewell

Address of George Washington, President,
of the United States,

to the

People

September 17th, 1796," on

his re-

tiring into private life after his second presidentship.

I

venture to extract a few passages, not; only on account of
their intrinsic excellence as

specimens of true

philosophy, but as directly applicable to
jects

discussed in the text,

many

political

of the sub-

on the changes that have

ensued, since those days, in the practical working of the
Constitution

:

"

Towards the preservation of your Government, and
the permanency of your present happy state, it is requisite,

not only that you steadily discountenance irregular

oppositions to

its

acknowledged authority, but

resist with care the spirit of innovation

upon

also that

you

its principles,

however specious the pretexts. One method of assault
may be, to effect, in the forms of the Constitution, alterations which will impair the energy of the system,
to

undermine what cannot be

the changes to which you

and thus

directly overthrown.

may be

invited,

In

remember

time and habit are at least as necessarv to

fix

all

that

the true

;

NOTES.

347

character of governments, as of other

that experience

is

human

institutions

the surest standard by which to test the

tendency of the existing constitution of a country;

real

that facility in changes,

and opinion, exposes
variety of hypothesis
cially,

upon the

mere hypothesis

credit of

to perpetual change,

from the endless

and opinion; and remember, espe-

management

that for the efficient

of as

much vigour

common

of your

government

interests, in a country so extensive as ours, a

as is consistent with the perfect security

Liberty

of liberty, is indispensable.

itself will find in such

a government, with powers properly distributed and adjusted, its surest guardian.

It

name, where the government

is,

is

indeed, little else than a

too feeble to withstand the

member

enterprises of faction, to confine each
ciety within

maintain

the

all in

the secure and tranquil enjoyment of the

rights of person

"

The

powers of

and property."

spirit of
all

of the so-

by the laws, and to

prescribed

limits

encroachment tends

to consolidate the

the departments in one, and thus to create,

whatever the form of government, a real despotism.
just estimate of that love of power,
it,

and proneness

The

satisfy us of the truth of this position.

to

A

abuse

necessity

of reciprocal checks in the exercise of political power, by

dividing and distributing

it

into different depositories,

and

constituting each the guardian of the public weal, against

innovations

by the others, has been evinced by experi-

ments, ancient and modern
country, and under our

own

;

some

eyes.

stance,

may

;

for

be the instrument of good,

weapon by which

free

.

though

.

own
them must

in our

preserve

be as necessary as to institute them.

be no change by usurpation

them

of

To

.

Let there

this, in

it is

one in-

the customary

governments are destroyed.

The

348

notes.

precedent must always greatly overbalance, in permanent
evil,

any

any time

partial or transient benefit -which the use can at

yield."

.

.

.

" Observe good faith
cultivate peace
lity

and

justice towards all nations,

and harmony with

enjoin this conduct, and can

does not equally enjoin

it ?

all
it

religion

;

and mora-

be that good policy

It will be

worthy of a

free,

enlightened, and, at no distant period, a great nation, to
give to

mankind the magnanimous and

too novel example

of a people always guided by an exalted justice
volence.

Who

and bene-

can doubt that, in the course of time and

things, the fruits of such a plan would richly repay

temporary advantages which might be
herence to

it ?

Can

it

nected the permanent

lost

any

by a steady ad-

be that Providence has not con-

felicity of

a nation with

its

virtue?

The experiment, at least, is recommended by every sentiment which ennobles human nature. Alas is it rendered
!

impossible by
"

The

nations,

its vices ?

"

great rule of conduct for us, in regard to foreign
is,

in extending our

with them as

little political

commercial relations,

to

have

connection as possible."

" Europe has a set of primary interests, which to us

have none or a very remote relation.

Hence she must be

engaged in frequent controversies, the causes of which are
essentially foreign to our concerns.

must be unwise
ties,

Hence,

therefore, it

in us to implicate ourselves by artificial

in the ordinary combinations

and

collisions

of her

friendships or enmities."*

*

Washington urges

this advice in several other paragraphs,

terminating in a recommendation to his countrymen to keep them-

notes.
" In offering to you,

an old and

make

my

349

countrymen, these counsels of

affectionate friend, I dare not

hope they

the strong and lasting impression I could wish

;

will

that

they will control the usual current of the passions, or pre-

vent our nation from running the course which has hitherto

marked the destiny
myself that they

some

of nations

may be

occasional good

;

hut

;

if

I

may

ever flatter

productive of some partial benefit,
that they

may now and then

to moderate the fury of party spirit, to

recur

warn against the

mischiefs of foreign intrigues, to guard against the impostures of pretended patriotism

compense

this

;

for the solicitude for

hope

will

be a

full re-

your welfare by which they

have been dictated."

Note XIII.
In Washington's Farewell Address above quoted, occurs
the following passage on the value of religious principles

"

:

Of

all

the dispositions and habits which lead to politi-

cal prosperity, religion

triotism,

of

and morality are indispensable sup-

In vain would that

ports.

who should labour

human

selves,

by

ture.

"

man

claim the tribute of pa-

to subvert those great pillars

happiness, those foremost props of the duties of
on a respectable defensive posthe danger to liberty," and particularly to " repub-

suitable establishments,

Upon

lican liberty," from large military establishments, which necessarily

follow a state of hostilities at

previous page.

home

or abroad, he had dilated in a

350

NOTES.

men and

The mere

citizens.

man, ought

pious

volume could not

and public

to

with the

politician, equally

respect and to

A

cherish them.

trace all their connections with private

Let

felicity.

security for property, for

it

simply be asked, where

life, if

is

the

the sense of religious ob-

the oaths which are the instruments of

ligation desert

And

investigation in courts of justice ?

let

us with caution

indulge the supposition^that morality can be maintained

Whatever may be conceded

without religion.

to

the in-

fluence of refined education on minds of peculiar structure,

reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principles."

On

the great experiment that

is

now

in progress in the

United States on that momentous question, I have ventured to touch in a previous volume.*

The adoption

of

any one form of religion by the State

being impossible in that country,
equally impossible by some,
sirable

it

it

has been thought

has been deemed unde-

by others, that any religious instruction involving

points of doctrine should be taught in the schools esta-

blished by the laws and supported by the funds of the

community.

It is assumed, that the doctrines of religion

will be taught at

Sunday

schools,

by the paid ministers of

each religious denomination, aided by voluntary teachers,
attending at the Sunday schools for that purpose.

As

this

question

thoroughly and

has

deeply

become one which
considered in

this

must be

country,

availed myself of such opportunities as I could

I

command

during a short tour in the United States in 1851, to inquire into its practical working in the public schools there.

*

Notes on Public Subjects, &c.

For

NOTES.

351

that purpose, I visited various public schools in

New

York, in Philadelphia, in country villages in the interior
of Pennsylvania, in Pittsburgh on the Ohio, in Cincinnati,

in

Lake

Cleveland on

and

Island,

my

aided in

finally, in

in the

Erie,

inquiries either

State

of

Rhode

In every instance, I was

Boston.

by the superintendents of

public instruction, or by the masters of the schools, and in

some instances by both
from the

The

together.

were gathered

facts

state of the schools exactly as I

found them,

without preparation, and without their being previously

aware either of

my

visit, or of

the nature of the facts which

I wished fairly to ascertain.
stated

it

The

result

in the volume above referred

to,

was

as I have

namely, that of

the pupils attending the day-schools, in some cases a large,
in others a small, but generally a very considerable proportion, " either did not attend

any Sunday

school, or did

so only very irregularly."

The

only hostile criticism upon those statements, which

has come under

my notice, has been directed against the
me respecting the Sunday schools at

information given

Lowell, by the Rev. Dr. Edson, for twenty-seven years
past the rector of a church at Lowell, and a gentleman

held in the highest estimation by

Edson, after giving

me

all his

neighbours.

Dr.

his reasons for having arrived at

the conviction that the public-school system had "already

undermined" among

their population, " to a great extent,"

the doctrines and principles of Christianity, stated to
his belief " that less than half of the whole

number

me
of

children (at Lowell) between the ages of five and sixteen

attend any Sunday-school, or do so only most irregularly."

This statement of Dr. Edson's excited great attention
at

Boston and in the State of Massachusetts generally,

and was subjected
papers.

An

to violent attacks in

inquiry was

very soon

some

of the public

instituted

by the

352

notes.

Board

of Education, throughout the State,

am

was, I

who

and the result

informed, that the children at the day-schools

did not attend at

some Sunday school were found,

at

that time, to constitute a very small per-centage of the

Without entertaining the

whole.

slightest particle of sus-

picion that such a result was unfairly obtained, I confess

purport does not in the least surprise me, considering

its

how probable
ened

it is

that

many parents would have been awak-

to the propriety of

sending their children to Sunday

school by the discussion that had arisen.

I beg, however, again to call attention in this country to

some

me by

additional evidence since furnished to

son, which, as it rests

upon public documents,

Dr.

Ed-

will scarcely

admit of dispute.

These documents are

:

"

1.

The Annual Report

of the

School Committee of the City of Lowell, for 1852, with a

Summary

of

Returns;"

2.

"The Annual

Lowell Sabbath School Union."
Dr. Edson says

:

— " This Union

The

schools not associated are

;

document

a voluntary association

fifteen out of twenty-four

have three schools
two

is

Report of the

this latter

Sunday school instruction, and compreSunday schools in the city.

for the benefit of

hends

Of

;

— the Roman Catholics, who

the Unitarians, two; the Universalists,

and two not connected with any particular form of

religion,

and claiming not

I have not the

to teach

any particular

religion.

numbers connected with the nine schools

not associated, but I have reckoned them, by a large estimate, at the average

number attending the

associated

schools."

Dr. Edson then subjoins the following Table, completed

by estimates on the above-named
that

it

bears

basis.

It will be seen

out in a remarkable manner, and almost

to the letter, the

statement which he made to

me

as the

result of observation only, namely, that less than half of

NOTES.

number

the whole

of children

353

between

and sixteen

five

(in

Lowell) attend the Sunday schools.
" According to the summary appended to the Annual

Report of the Lowell School Committee, the
of pupils in the time-books

total

number

from January, 1851, to January,

9012

1852, was
Subtract

sent to other public schools of

'

same rank,' because these names are
repeated in the time-book
Subtract also

mar

'

schools,' for the

Subtract

.

.

636

.

sent from primary to gram-

same reason

629

.

sent from grammar-schools to

'

the high school'

.

.129

.

.

1394
Total number of pupils attending the dayschools for the year

1852

.

.

.

" According to the report of the Sabbath School

column

for 1852, in the statistical

and

age,'

filling the

'

under

7618
Union

fifteen years of

blanks with estimates derived from

the average of schools reported of the same persuasion, the

number

total

....

of children under fifteen in those schools for

the year 1852

1947

+

348

= 2295

Add for schools not associated — namely, Ro-

man

Catholics, 3

versalists, 2

9 schools

;

;

Unitarians, 2

;

Uni-

of no particular religion, 2

— estimated

number

;

of pupils

therein, under 15, according to the ave-

1377

rage of schools reported

Add

for

such pupils above 15 in the public

schools

as

may

be in Sunday schools

204

(estimated)

Total

number

of pupils attending the Sun-

day schools, according
estimate

to statistics

and

3876"

354

NOTES.

Dr. Edson's statement to me, founded on general observation, was, " that less than half of the whole

number

and sixteen

of children (at Lowell) between the ages of five

attend any Sunday school, or do so only most irregularly."

Multiplying the above number of 3876 by two, will give

7752.

The number 3876, therefore, exceeds the half of the
number 7618 by 134 only (7752—7618 = 134) and Dr.
;

Edson's statement

to

me, with regard

Sunday schools being

to the attendance at

than half of that at the day-

less

by the pub-

schools, is proved to be almost literally correct,

lished statistics of the day and

completed by

fair

and

Sunday schools

of Lowell,

liberal estimates.

" It will be seen," Dr.

Edson

adds, " by perusal of the

Report of the Sabbath School Union, that the tendency of
each particular school

is to

It is but the

report itself large.

natural result of a laudable emulation of the schools be-

tween themselves

to report as

and of course

justify,

tendance

to

many

but very irregular

is

as circumstances will

include those pupils whose at-

and of inconsiderable

amount.
" It

may be remarked

also that there are included in

the 3876, pupils privately educated, or otherwise not be-

longing to the public schools.
7618,

it

would somewhat

bers," in the

way

If these were added to the

affect the ratio of the

two num-

of further confirmation of Dr. Edson's

calculations.

When
among
to

it

is

remembered how much

it

is

the custom

the upper and middle classes in the United States

send their children

to the

Sunday

themselves as teachers,

it is

great majority of those

who neglect

schools,

and

to attend

perfectly safe to infer that the
to

send their children,

belong there, as in this country, to the least educated portions of society.

NOTES.

By

355

these latter, secular education

more and more

to

is,

in England,

coming

be regarded almost in the category

of material wants, since

it

is

found to be one of the best

instruments towards supplying them.

Such persons

will

send their children to the day-school to obtain the small

amount of common learning which they think necessary,
and withdraw them at the earliest possible age at which
this can be attained.

And

the better the school, generally

speaking, the earlier the age at which the majority of such

children leave

After that period, neither schoolmaster,

it.

nor clergyman, nor dissenting minister, can feel the least
certainty that he will ever see anything

more

of

them again

as far as education is concerned, secular or spiritual.

If

the few early years of secular instruction are not seized

upon, to impart at the same time
ciples of Christian doctrine,

and

all

to

the elementary prin-

make the

sions in favour of a firm Christian belief,

first

where

bability that the great majority of those

is

impresthe pro-

who most need
it ? Even

such early training and direction will ever obtain
if

the whole were gathered into Sunday schools, which

beyond

all

expectation,

who

is to

teach them

?

The

is

clergy

are already overburdened, and greatly too few to

meet the

The voluntary

teachers,

present demands upon them.

whatever

may

be their zeal,

cannot be

expected,

ex-

cept in comparatively rare instances, to possess that com-

mand

of elementary

knowledge and that

which are indispensable,
successful.

And

if

if

tact in using

it,

teaching is to be impressive and

these elementary principles of a firm

Christian belief are not fixed early in the mind, according
as they are understood by the church or sect to which the

child belongs, the progress
difference to any,

and then

is

direct

and rapid,

first to in-

to the rejection of all.

this process is going on in the

That

United States, as the direct

356

NOTES.

result of their public-school system,

the opinion of

is

portions of the principal religious bodies

Eoman

Catholics,

many

— in particular the

the Church of England, and the old

Presbyterians or Puritans

— irrespective

of

mere

party

common

views; although at the same time the belief

is

no other system of general education

that country

possible.

It is

in

that

an experiment from which, touching as

is
it

does the foundation of " those great pillars of

and morality,"

piness, religion

ington,

to

to

in the

me

use the

well to abstain. *

some remarks on my book,
"Westminster Review"

* In

&c,

we should do

human hapwords of Wash-

that the information which

I

" Notes

on Public Subjects."

for April, 1853, it is

imputed

gave upon this subject in that

volume was collected " under the influence of the ultras of the
high-church party and my own bias." I beg, in the first place
utterly to disclaim any bias towards the high-church party
and in
the next, I assert that my information was collected indiscriminately from a great variety of persons, and without the least attempt
at inquiry as to, or any knowledge of, the tenets of those who gave
;

it

or assisted

me

in procuring

It is further said, " that

to say the least of

it,

it.

Mr. Tremenheere has been very careless,

in adducing authorities.

Thus in enumerat-

ing his adverse testimonies, he represents the Bishop of Massachusetts as saying, that

he would prefer, in the interests of religion, a

mixture of religious with secular teaching, but that this

is

not

But we are assured by the Bishop that he was misreBeing asked whether he would not prefer having the
ported.
that
schools more under his control, he said Yes,' but added,
this was impossible, and that he was quite satisfied with the working
of the present system,' of which satisfaction we are not favoured with
attainable.

'

a hint."

Westminster Review, April, 1853,

In confirmation of the correctness of

'

p. 515.

my own

statement, and in

opposition to that of the writer of the review, I appeal to the

answer given by the Bishop to Mr. Twisleton, printed in the Appendix to the Eeport of the Select Committee on Manchester and
Salford Education (1852), p. 492; which answer, verified

by the

Bishop's signature, together with the question, was as follows

:—

notes.

357

Note XIV.
It would be easy to quote

United

States

from public documents of the

proofs of extravagant

expenditure sanc-

tioned by Congress, and something more than extravagant
" Question
that system

]

Generally, do you approve or do you disapprove of
and what are the main grounds on which your appro-

5.

bation or disapprobation of it is founded ]
" Answer. Although I individually should prefer arrangements

my own

Church were directly taught in
on the whole, I approve of the present
system, because it ensures the means of providing a more efficient
system of instruction than could permanently be maintained for

under which the tenets of
the

all

common

schools, yet,

the children of the commonwealth in any other way."

The approval

of the right reverend

gentleman

is

be founded, not on religious grounds, but on the

thus shown to
fact that in his

opinion a more efficient system of instruction could not be permanently maintained for all. This is very different from an assertion that he " was quite satisfied with the working of the present
system."

A

writer in a periodical has stated that I was only two days in

Boston, and therefore had no right to give an opinion upon the
I was in Boston eleven
from the 25th to the 27th of August, and from the 5th to the
14th of November, 1851.
[Since the above was written the official declaration of the number of votes upon the questions submitted to the electors of Massa-

schools there or in that neighbourhood.
days,

chusetts, in
for the

November

last,

have reached this country.

proposed new Constitution were

majority against, 4928.

The votes

—yeas, 63,222; nays, 68,150

For Sectarian

Schools, 65,111

;

;

against,

While, therefore, a purely secular
being advocated here, on the strength of the example
of Massachusetts, public opinion there is evidently undergoing a
65,512

system

;

majority against, 401.

is

change upon that subject.]

— —

358

NOTES.
granted by public officers to individuals.

contracts
this

book has been written, not

But

to excite irritation, or de-

signedly to give offence, or for the purposes of flattery,
or to encourage national self-complacency, but simply to
illustrate great political principles, in their ordinary

natural action.

and

I therefore confine myself to the follow-

ing summary, which has the appearance of being authentic,

and which,

if so,

contributes to the proof that democratic

majorities are not always the

public purse

most

careful guardians of the

:

(From the Daily National

Intelligencer.)

Washington, Sept. 25, 1853.
11

Amount

of Appropriations reported at the last Session

of Congress, by the

Committee of Ways and Means,

the Service of the Year ending June 30, 1853

for

:

Dollars.

and Diplomatic

Civil

6,052,770

Invalid Pensions

Navy

1,366,240

45,000

ditto

879,000

Indian Department

Army
Military

7,396,775

Academy

135,958

141,500

Fortifications

Rivers and Harbours

.

.

....

1,501,290

Navy

6,705,467

Transportation of Mail by Ocean Steamers

1,467,250

Lighthouses

497,025
26,188,275

In the passage through the House of Representatives
the Democratic majority added to the above sum, as
follows

:

NOTES.

359
Dollars.

Civil

and Diplomatic

431,861

Indian Appropriations
Rivers and Harbours

Dollars.

1,341,502

.

45,000

.

Navy

20,000

Ocean Mail Steamers

473,000
31,000

Lighthouses

2,342,363
"

With

these additions the bills went to the Senate,

where the Democratic majority thought their brethren
of the

Lower House had not put

ing accounts in addition
Civil

their

hands deep enough

and they piled on the

into the public Treasury,

follow-

:

and Diplomatic

.

.

.

Indian Affairs

904,014
675,565

Army

840,167

Military

Academy

....

Rivers and Harbours

.

.

.

3,100

578,000

Navy

231,250

Lighthouses

181,120
3,413,216

In addition

to these there

finite appropriations,"^,

e.

were " inde-

"appropriations

without specifying the amounts for the

dif-

1,300,000

ferent items respectively

7,035,712"*

Total
It thus appears that (to take the lowest
dollars (upwards of £1,400,000)

were added

sum) 7,035,712
to the

expendi-

ture of 1852-3 by Congress, beyond the sum (26,188,275
dollars,
*

about £5,300,000) thought necessary by the

This

is

the total given

;

but the figures make

it

Com-

7,055,579.

360

NOTES.

inittee of

Ways and Means

for the year

an addition of nearly 28 per cent,

;

or, in

to the

other words,

sum they had

thought sufficient for the public service.
It is further to be borne in

mind

that this Democratic

majority was in opposition to the general policy of the

President and his Ministers, who were of the "Whig party.

Note XV.
Presidents of the United States from the adoption of
the Constitution
1.
2.

George Washington
John Adams

7.

Thomas Jefferson
James Madison
James Munroe
John Quincy Adams
Andrew Jackson,

8.

Martin

9.

Wm. Henry

3.

4.
5.

6.

Yan Buren

April 30, 1789, to March

March
March
March
March
March
March
March

Harrison ...March

10.

John Tyler

April

11.

James Knox Polk

12.

Zachary Taylor

March
March

13. Millard
;

:

14.

Fillmore

Franklin Pierce

July

4,

1797, to

4,

1801, to

4,

1809, to

4,

1817, to

4,

1825, to

4,

1829, to

4,

1837, to

4,

1841, to April
1841, to

4,

9,

March

3,

March
March
March
March
March
March
March

1797.

3,

1801.

3,

1809.

3,

1817.

3,

1825.

3,

1829.

3,

1837.

3,
4,

1841.

1841.

March 3, 1845.
March 3, 1849.

4,

1845, to

4,

1849, to July

9,

1850.

March

3,

1853.

1850, to
4,

1853.

NOTES.

361

Note XVI.
LIST OF STATES.

The Thirteen Original States

:-

Population

Population

in 1850.

in 1850.

1.

New Hampshire

317,864

8.

Delaware

91,535

2.

Massachusetts

994,499

9.

Maryland

583,035

3.

Khc-de Island

147,544

10. Virginia

4.

Connecticut

.

370,791

11.

.

3,090,022

.

489,333

6.

New York
New Jersey

7.

Pennsylvania

5.

.

1,421,081

.

868,903

12.

North Carolina
South Carolina

13.

Georgia

905,999

.

668,507

.

2,311,681

New

States:

Admitted into

Population

the Union, a.d.

in 1850.

15.

Vermont
Kentucky

1792

982,405

16.

Tennessee

1796

1,002,625

17.

Ohio

1802

1,977,031

14.

18. Louisiana
19.

Indiana

1791

313,611

1812

500,763

1816

988,734

20. Mississippi

1817

592,853

21. Illinois

1818

858,298

Alabama
Maine

1819

771,671

1820

583,088

24. Missouri

1821

682,043

22.
23.

25.

Arkansas

1836

209,639

26.

Michigan

1837
1845
1845

397,654

192,214

27. Florida

87,387

28.

Texas

29.

Iowa
Wisconsin

1846
1848

304,226

31. California

1850

200,000

30.

.

187,403

R

362

NOTES.
Territories

:

Admitted
Oregon
Minesota

.....
....

Utah (Mormon Valley)
New Mexico
Nebrasca (about to be organised)
District of Columbia

....

Total Population

into

the Union, a.d.

1848

Population
in 1850.

20,000

1849

6,192

1850

25,000

1850
1854
1791

No

return

48,000

23,269,498

P PEN

D

I

X.

(See page 147.)

AN ACT TO PREVENT FRAUDS UPON THE
TREASURY OF THE UNITED STATES.
Be

it

House of

enacted by the Senate and

Representatives

of the United States of America in Congress assembled,

That

all transfers

and assignments hereafter made of any

claim upon the United States, or any part or share thereof,
or interest therein, whether absolute or conditional, and

whatever may be the consideration therefore

;

and

all

powers

of attorney, orders, or other authorities for receiving pay-

ment

of

any such claim, or any part or share thereof, shall

be absolutely null and void, unless the same shall be freely

made and executed

in the presence of at least two attesting

witnesses, after the allowance of such claim, the ascertain-

ment of the amount due, and the
the payment thereof.
Sec. 2.

And

issuing of a warrant for

be it further enacted,

That any

officer of

the United States, or person holding any place of trust or
profit, or

discharging any

official

function under or in con-

nection with any executive department of the

Government
House of

of the United States, or under the Senate or

Representatives of the United States, who, after the passage of this Act, shall act as an agent or attorney for pro-

R 2

APPENDIX.

364

secuting any claim against the United States, or shall in

any manner, or by any means otherwise than in the
charge of his proper

official

duties, aid or assist

dis-

in the

prosecution or support of any such claim or claims, or
shall

receive any gratuity, or any share of or interest in

any claim, from any claimant against the United States,
with intent to aid or

assist, or in

consideration of having

aided or assisted in the prosecution of such claim, shall be

indictment as for a misdemeanor in any court of

liable to

the United

having jurisdiction thereof, and, on

States

conviction, shall pay a fine not exceeding five thousand
dollars,

or suffer imprisonment in the

penitentiary not

exceeding one year, or both, as the court in

discretion

its

shall adjudge.

Sec.

3.

And

be

it

further enacted, That any senator or

representative in Congress who, after the passage of this

Act, shall, for compensation paid or to be paid, certain or
contingent, act as agent or attorney for prosecuting any

claim or claims against the United States, or shall in any

manner, or by any means,

for

assist in the prosecution or

claims,

or shall receive

such compensation, aid or

support of any such claim or

any gratuity or any share of or

interest in any claim, from

any claimant against the United

States, with intent to aid or assist, or in consideration of

having aided or assisted, in the prosecution of said claim,
shall be liable to indictment as for a misdemeanor in any
court of the United States having jurisdiction thereof, and,

on conviction, shall pay a fine not exceeding five thousand
dollars, or suffer imprisonment in the penitentiary not
exceeding one year, or both, as the court in

its

discretion

shall adjudge.

Sec

4.

And

shall wilfully

be it further enacted,

That any person who

and knowingly destroy, or attempt

to destroy,

APPENDIX.
or,

with intent to steal or destroy, shall take and carry

away any
filed or

or

365

record, paper, or proceeding of a court of justice,

deposited with any clerk or officer of such court,

any paper or document or record

any public
shall,

office,

filed or deposited in

or with any judicial or public officer,

without reference to the value of the record, paper,

document, or proceeding so taken, be deemed guilty of
felony, and,

on conviction in any court of the United States

having jurisdiction thereof, shall pay a fine not exceeding

two thousand

dollars, or suffer

imprisonment in a peniten-

tiary not exceeding three years, or both, as the court in its

discretion shall adjudge.

Sec.

5.

And

be it further enacted,

That any

officer hav-

ing the custody of any record, document, paper, or proceeding specified in the last preceding section of this Act, who
shall fraudulently take away, or withdraw, or destroy

such record, document, paper, or proceeding

any

filed in his

or deposited with him, or in his custody, shall be

office,

deemed

guilty of felony in any court of the United States

having jurisdiction thereof, and, on conviction, shall pay a
fine not exceeding

ment

two thousand dollars, or suffer imprison-

in a penitentiary not exceeding three years, or both,

as the court in its discretion shall adjudge,

and be

feit his office,

holding any

and

shall for-

for ever afterwards disqualified

from

under the Government of the United

office

States.

Sec

6.

And

be

it

further enacted, That

if

persons shall, directly or indirectly, promise,

any person or
offer,

or give,

or cause or procure to be promised, offered, or given, any

money, goods, right in

action, bribe, present, or reward, or

any promise, contract, undertaking, obligation, or security
for the

payment or delivery of any money, goods, right in

action, bribe,

present, or reward, or any other valuable

366

APPENDIX.

thing whatever, to any

member

of the Senate or

House

of

Representatives of the United States after his election as

such member, and either before or after he shall have

and taken his

qualified

discharging any

any

seat, or to

States, or person holding
official

officer of

the United

any place of trust or

profit, or

function under, or in connection

with any department of the Government of the United

under the Senate or House of Representatives

States, or

of the United States, after the passage of this Act, with

intent to influence his vote or decision on any question,

matter, cause, or proceeding, which
or

may by

law, or

may then be pending,

under the Constitution of the United

States be brought before

him

his place of trust or profit,

in his official capacity, or in

and

shall be thereof convicted,

such person or persons so offering, promising, or giving,
or causing or procuring to be promised, offered, or given,

any such money, goods, right in

action, bribe, present, or

reward, or any promise, contract, undertaking, obligation,
or security for the

payment

or delivery of any money,

goods, right in action, bribe, present, or reward, or other

valuable thing whatever, and the member,
son,

who

shall in

officer,

or per-

any wise accept or receive the same, or

thereof, shall be liable to indictment, as for a high

any part

crime and misdemeanor, in any court of the United States

having jurisdiction

meanors

;

and

shall,

for

the

trial

of crimes

and misde-

upon conviction thereof, be fined not

exceeding three times the amount so offered, promised, or
given,

and imprisoned in a penitentiary not exceeding

three years

;

and the person convicted of so accepting or
if an officer or

receiving the same, or any part thereof,

person holding any such place of trust or profit as aforesaid, shall forfeit his office or place

;

and any person so

convicted under this section shall for ever be disqualified

APPENDIX.
any

to hold

office of

367

honour, trust, or

profit,

under the

United States.
Sec.

7.

And

of this Act,

hundred and

payment

and

be it further enacted,

of the

That the provisions

Act of July twenty-ninth, eighteen

forty-six, entitled "

An

Act in relation

to the

of claims," shall apply and extend to all claims

against the United States, whether allowed by special Acts
of Congress, or arising under general laws or treaties, or
in

any other manner whatever.
Sec.

8.

And

be it further enacted,

That nothing in the

second and third sections of this Act contained shall be
construed to apply to the prosecution or defence of any
action or suit in any judicial court of the United States.

Approved February

26, 1853.

368

APPENDIX.

CONSTITUTION

UNITED STATES OF AMEBIC A.

We,

the people of the United States, in order to form a more

perfect union, establish justice, ensure domestic tranquillity,

provide for the
fare,

common

defence, promote the general wel-

and secure the blessings of

liberty to ourselves

and

our posterity, do ordain and establish this Constitution for
the United States of America.

ARTICLE
Sectjon
1.

I.
1.

All legislative powers herein granted shall be vested

in a congress of the

United States, which

shall consist of

a senate and house of representatives.

Section

2.

1. The
memhers chosen every second year by the people

house of representatives shall be composed of
of the

several states, and the electors in each state shall have the
qualifications requisite for electors of the

branch of the state legislature.

most numerous

APPENDIX.

No

2.

369

person shall be a representative who shall not

have attained

to the

age of twenty-five years, and been seven

who

years a citizen of the United States, and

when

elected, be

shall

be chosen.

an inhabitant of that

which he

Eepresentatives and direct taxes shall be apportioned

3.

among
shall be

be included within

to their respective

determined by adding

persons, including those
years,

may

the several states which

Union, according

this

shall not,

state in

bound

to

numbers, which

whole number of free

to the

service for a

term of

and excluding Indians not taxed, three-fifths of

The

other persons.

actual

within three years after the
of the United States,

ten years, in such

The number

all

enumeration shall be made
first

meeting of the congress

and within every subsequent term of

manner

as they shall by law direct.

of representatives shall not

exceed one for

every thirty thousand, but each state shall have at least

one representative

made, the state of

;

and, until such enumeration shall be

New Hampshire

shall be

entitled to

Rhode Island and ProConnecticut five, New York six,

choose three, Massachusetts eight,

vidence Plantations one,

New

Jersey four, Pennsylvania eight, Delaware one, Mary-

land

six,

five,

and Georgia

4.

any

Virginia ten, North Carolina

When

five,

South Carolina

three.

vacancies happen in the representation from

state, the executive authority thereof shall issue writs

of election to
5.

fill

such vacancies.

The house

speaker and other

of representatives
officers,

and

shall

shall

choose

their

have the sole power

of impeachment.

Section
1

.

The

3.

senate of the United States shall be composed

R 3

APPENDIX.

370

of two senators from each state, chosen by the legislature
thereof, for six years

;

and each senator

shall

have one

vote.
2.

Immediately

sequence of the

may

equally as

senators of the

after they shall

be assembled, in con-

election, they shall

first

be into three classes.
first class shall

be divided as

The

seats of the

be vacated at the expiration

of the second year, of the second class at the expiration of

the fourth year, and of the third class at the expiration of

the sixth year, so that one-third

second year; and

if

may be chosen every

vacancies happen, by resignation or

otherwise, during the recess of the legislature of any state,

may make temporary appointments,

the executive thereof
until the
fill

next meeting of the legislature, which

shall then

such vacancies.
3.

No

person shall be a senator who shall not have

attained to the age of thirty years, and been nine years a
citizen

United States, and who shall

of the

elected, be

when

not,

an inhabitant of that state for which he shall

be chosen.
4.

The

vice-president of the United States shall be pre-

sident of the senate, but shall have no vote unless they be
equally divided.
5.

The

senate shall choose their other

officers,

and

also

a president pro tempore, in the absence of the vice-president, or

when he

shall exercise the office of president of

the United States.
6.

The

senate shall have the sole power to try

peachments.

When

sitting for that

be on oath or affirmation.

United States

When

all

im-

purpose, they shall

the president of the

the chief justice shall preside

and
no person shall be convicted without the concurrence of
is tried,

two-thirds of the

members

present.

:

APPENDIX.

371

Judgment, in cases of impeachment, shall not extend

7.

further than to removal from office, and disqualification to

hold and enjoy any

office of

the United States

but the party convicted shall neverthe-

;

and subject

less be liable

honour, trust, or

to law.

Section

The

1.

times, places, and

under

judgment,

to indictment, trial,

and punishment, according

for senators

profit,

4.

manner

and representatives,

of holding elections

shall be prescribed in

each state by the legislature thereof; but the congress

may

at

any time, by law, make or alter such regulations,

except as to the places of choosing senators.

The congress

2.

shall

assemble at least once in every

and such meeting

shall

December, unless they

shall

year,

be on the

first

Monday

in

by law appoint a different

day.

Section
1.

Each house

turns,
rity of

and

shall be the judge of the elections, re-

qualifications of its

be authorised

to

2.

may

adjourn from day to day, and

;

but

may

compel the attendance of absent members,

in such manner,

ings,

own members, and a majo-

each shall constitute a quorum to do business

a smaller number

may

5.

and under such penalties,

as each house

provide.

Each house may determine the
punish its members

rules of its proceed-

for disorderly behaviour, and, with

the concurrence of two-thirds, expel a member.
3.

Each house

and from time

shall

to

keep a journal of

its

proceedings,

time publish the same, excepting such

parts as may, in their judgment, require secrecy;

yeas and nays of the

members of

either house on

and the

any ques-

APPENDIX.

372

tion shall, at the desire of one-fifth of those present, be

entered on the journal.
4.

Neither house, during the session of congress,

shall,

without the consent of the other, adjourn for more than
three days, nor to any other place than that in which the

two houses

shall be sitting.

Section
1.

The

6.

senators and representatives shall receive a com-

pensation for their services, to be ascertained by law, and

paid out of the treasury of the United States.
in all cases, except treason, felony,

They

shall,

and breach of the peace,

be privileged from arrest during their attendance at the
session of their respective houses, and in going to and re-

turning from the same

and

;

for

any speech or debate in

either house, they shall not be questioned in any other
place.
2.

for

No

senator or representative shall, during the time

which he was elected, be appointed

any

to

civil office

under the authority of the United States, which shall have
been created, or the emoluments whereof shall have been
increased during such time
office

;

and no person holding any

under the United States, shall be a member of either

house during his continuance in

Section
1.

office.

7.

All bills for raising revenue shall originate in the

house of representatives

;

2.

Every

bill

may

but the senate

concur with amendments, as on other

propose or

bills.

which shall have passed the house of re-

presentatives and the senate shall, before

it

become a law,

be presented to the president of the United States
approve he shall sign

it,

but

if

not he shall return

;

it,

if

he

with

APPENDIX.
his objections, to that house in

who

nated,

which

it

have origi-

shall

objections at large on their

shall enter the

and proceed

journal,

373

to reconsider

If,

it.

after such re-

consideration, two-thirds of that house shall agree to pass

the

bill, it

shall be sent, together with the objections, to

the other house, by which
and,

it

shall likewise be reconsidered,

approved by two-thirds of that house,

if

come a

But

law.

it

shall be-

in all such cases the votes of both

houses shall be determined by yeas and nays, and the

names

and against the

of the persons voting for

bill shall

be entered on the journal of each house respectively.

any

bill shall

If

not be returned by the president within ten

days (Sundays

excepted) after

shall

it

have been pre-

sented to him, the same shall be a law, in like manner

he had signed

it,

adjournment, prevent

its

as

if

unless

the congress,

return, in which case

by their
not

it shall

be a law.
3.

Every

order, resolution, or vote, to which the con-

currence of the senate and house of representatives

may

be necessary (except on a question of adjournment), shall
be presented
before the

him,

or,

to the president of

same

the United

States

;

and,

shall take effect, shall be approved

by

being disapproved by him, shall be repassed by

two-thirds of the

senate

and house of representatives,

according to the rules and limitations prescribed in the
case of a

bill.

Section

8.

The congress shall have power
1. To lay and collect taxes, duties,
to

pay the debts and provide

for the

imposts, and excises,

common

general welfare of the United States

;

but

defence and

all duties,

im-

::

:

:

:

APPENDIX.

374
and

posts,

States

excises, shall

be uniform throughout the United

:

To borrow money on

2.

the

credit

of the

United

States
3.

To

regulate

commerce with foreign

nations,

and among

the several states, and with the Indian tribes
4.

To

an uniform rule of naturalisation, and

establish

uniform laws on the subject of bankruptcies throughout
the United States

To

5.

:

coin money, regulate the value thereof, and of

foreign coin, and fix the standard of weights and

sures
6.

To

provide for the punishment of counterfeiting the

securities
7.

8.

mea-

:

and current coin of the United States

To establish post-offices and
To promote the progress of

by securing,

:

post- roads:

science and useful arts,

for limited times, to authors

and inventors

the exclusive right to their respective writings and discoveries

:

To constitute tribunals inferior to the supreme court
10. To define and punish piracies, and felonies com-

9.

mitted on the high seas, and offences against the law of
nations
11.
prisal,

:

To

declare war, grant letters of

marque and

re-

and make rules concerning captures on land and

water

To raise and support armies, but no appropriation
money to that use shall be for a longer term than two
12.

of

years
13.

14.

To provide and maintain a navy
To make rules for the government and
:

of the land

15

and naval

To provide

regulation

forces:

for calling forth the militia to execute

:

:

APPENDIX.

375

the laws of the Union, suppress insurrections, and repel
invasions

To

16.

provide for organising, arming, and disciplining

the militia, and for governing such part of them as

may

be employed in the service of the United States, reserving
to the states respectively the

appointment of the

officers,

and the authority of training the militia according
discipline prescribed by congress

To

17.

to

the

exercise exclusive legislation in all cases what-

soever, over such district (not exceeding ten miles square),

as may,

by cession

of congress,

and

States,

of particular states,

become the

seat of

and the acceptance

government of the United

to exercise like authority over all places pur-

chased by the consent of the legislature of the state in

which the same shall be, for the erection of
zines, arsenals, dock-yards,

forts,

maga-

and other needful buildings:

And
18.

To make

all

laws which shall be necessary and

proper for carrying into execution the foregoing powers,

and

all

other powers vested by this Constitution in the

government

of the

United States, or in any department or

officer thereof.

Section
1.

9.

The migration or importation of such persons
now existing shall think proper to

of the states

shall not be prohibited

by the congress prior

as

any

admit,

to the

year

one thousand eight hundred and eight, but a tax or duty
may be imposed on such importation, not exceeding ten
dollars for each person.
2.

The

privilege of the writ of habeas corpus shall not

be suspended, uuless when in cases of rebellion or invasion
the public safety

may

require

it.

APPENDIX.

376
3.

No

4.

No

of attainder or ex post facto law shall be

bill

capitation, or other direct tax shall be laid, unless

in proportion to the census, or enumeration hereinbefore

directed to be taken.
5.

No

tax or duty shall be laid on articles exported

from any

state.

No

preference shall be given, by any

commerce

regulation of

or revenue, to the ports of one

state over those of another

nor shall vessels bound to

;

or from one state be obliged to enter, clear, or pay duties
in another.
6.

No money

shall be

drawn from the treasury, but in

consequence of appropriations made by law

and a

;

re-

gular statement and account of the receipts and expenditures of all public

money

shall be published

from time

to time.
7.

No

States

:

title

of nobility shall be granted by the

And no

under them

person holding any

shall, without.

United

office of profit or trust

the consent of the congress,

accept of any present, emolument,

office,

or

title

of any kind

whatever, from any king, prince, or foreign state.

Section
1.

No

state shall enter into

federation;

money

;

10.

any

treaty, alliance, or con-

grant letters of marque and reprisal;

emit

silver coin a tender in

coin

make anything but gold and
payment of debts pass any bill of

bills of credit

;

;

attainder, ex post facto law, or law impairing the obligation

of contracts, or grant
2.

No

any

title

of nobility.

state shall, without the consent of the congress,

lay any imposts or duties on

cept what

may

imports

or

exports,

be absolutely necessary for executing

exits

APPENDIX.
inspection laws

;

and the net produce of

by any

imposts, laid

such laws shall be subject

No

duties

all

and

on imports or exports, shall be

state

for the use of the treasury of the

the congress.

377

United States

to the revision

and

;

all

and control of

state shall, without the consent of con-

any duty of tonnage, keep troops, or ships of

gress, lay

war, in time of peace, enter into any agreement or com-

pact with another state, or with a foreign power, or engage
in war, unless actually invaded, or in such

imminent danger

as will not admit of delay.

ARTICLE
Section

The

1.

II.
1.

executive power shall be vested in a president of

He

the United States of America.

shall

hold his

office

during the term of four years, and together with the vicepresident, chosen for the

lows

same term, be elected

as fol-

manner

as the

:

2.

Each

appoint, in such

shall

state

legislature thereof

may

direct, a

number

of electors equal

whole number of senators and representatives to

to the

which the

state

may be

entitled in the congress

:

but no

senator or representative, or person holding an office of
trust or profit

an

under the United States, shall be appointed

elector.
3.

The

electors shall

and vote by

ballot for

shall not be
selves.

And

meet

in their respective

two persons, of

whom

states,

one at least

an inhabitant of the same state with themthey shall

make a

list

of

all

the persons

and of the number of votes for each which list
they shall sign and certify, and transmit, sealed, to the
voted

for,

seat of the

;

government of the United

States, directed to

;

APPENDIX.

378

The

the president of the senate.
shall, in the

tatives,

president of the senate

presence of the senate and house of represen-

open

all

the certificates, and the votes shall then

The person having

be counted.

votes shall be the president,

number

of the whole

if

the greatest

number

of

such number be a majority

of electors appointed

;

and

there

if

be more than one who have such majority, and have an

number

equal

of votes, then the house of representatives

shall immediately choose

sident
five

and

;

if

by ballot one of them

for pre-

no person have a majority, then, from the

highest on the

manner
But in choosing the president the

the said house shall in like

list

choose the president.

votes shall be taken by states, the representation from each
state having one vote

consist of a
states,

member

and a majority of

to a choice.

In every

quorum for this purpose shall
members from two-thirds of the

a

;

or

all

the states shall be necessary

case, after the choice of the pre-

sident, the person having the greatest

number of votes of
But if there

the electors shall be the vice-president.

should remain two or more who have equal votes, the
senate

shall choose

from them by ballot the vice-pre-

sident.
4.

The congress may determine the time

of choosing

the electors, and the day on which they shall give their
votes

;

which day

shall be the

same throughout the United

States.
5.

No

person, except a natural-born citizen, or a qitizen

of the United States at the time of the adoption of this

Constitution, shall be eligible to the office of president

neither shall any person be eligible to that office

who

shall

not have attained to the age of thirty-five years, and been
fourteen years a resident within the United States.
6.

In case of the removal of the president from

office,

APPENDIX.

379

or of his death, resignation, or inability to discharge the

powers and duties of the said

office,

the same shall devolve

on the vice-president, and the congress

may by law

pro-

vide for the case of removal, death, resignation, or inability,

both of the president and vice-president, declaring what
officer shall

then act as president, and such

officer shall

act accordingly, until the disability be removed, or a pre-

sident shall be elected.

The

7.

president shall, at stated times, receive for his

which shall neither be increased

services, a compensation,

nor diminished during the period for which he shall have

been

elected,

and he

shall not receive within that period

any other emolument from the United States or any of
them.
8.

Before he enter on the execution of his

shall take the following oath or affirmation
9.

he

" I do solemnly swear (or affirm), that I will faith-

fully execute the office of president of the

and

office,

:

will, to

the best of

my

United States,

ability, preserve, protect,

and

defend the Constitution of the United States."

Section

2.

1. The president shall be commander-in-chief of the
army and navy of the United States, and of the militia of
the several states, when called into the actual service of

the United States; he

may

require the opinion, in writing,

of the principal officer in each of the executive depart-

ments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves

and pardons

for offences against the

United States, except

in cases of impeachment.
2.

He

shall have power,

consent of the senate, to

by and with the advice and

make

treaties,

provided two-thirds

:

APPENDIX.

380

of the senators present concur

;

and he shall nominate, and,

by and with the advice and consent of the senate,

shall

appoint ambassadors, other public ministers and consuls,

judges of the supreme court, and

all

other officers of the

United States, whose appointments are not herein otherwise provided

and which

for,

may by law

but the congress

shall be established

by law

vest the appointment of such

they think proper, in the president

inferior officers, as

alone, in the courts of law, or in the heads of departments.

The president

3.

that

shall

may happen during

have power

to

fill

up

all

vacancies

the recess of the senate, by grant-

ing commissions, which shall expire at the end of their

next session.

Section
1.

He

shall

3.

from time to time give

to the

congress in-

formation of the state of the Union, and recommend to
their consideration such measures as he shall judge neces-

sary and expedient

;

he may, on extraordinary occasions,

convene both houses, or either of them, and in case of

agreement between them with respect

may

journment, he
think proper

he

;

public ministers
fully executed,

;

to the

adjourn them to such time as he shall
receive

shall

ambassadors and other

he shall take care that the laws be

and

dis-

time of ad-

shall

commission

faith-

the officers of the

all

United States.
Section
1.

The

4.

president, vice-president,

and

all

the United States shall be removed from

ment

for,

and conviction

of,

crimes and misdemeanors.

civil officers of

office

on impeach-

treason, bribery, or other high

APPENDIX.

ARTICLE
Section

The

1.

judicial

381

III.
1.

power of the United States shall be

vested in one Supreme Court, and in such inferior courts

may from time to time ordain and estaThe Judges, both of the supreme and inferior

as the congress
blish.

courts, shall hold their offices during good behaviour,
shall, at stated times, receive for their services

sation,

which shall not be diminished during their con-

tinuance in

office.

Section
1.

and

and

a compen-

2.

The judicial power

shall extend to all cases, in law

under

this Constitution, the laws of the

equity, arising

United States, and

treaties

under their authority

;

made, or which

other public ministers, and consuls
miralty and

maritime jurisdiction

;

;

to all
to

of another state,

tween

citizens

states,

cases

of ad-

controversies

which the United States shall be a party;

between two or more

made,

shall be

to all cases affecting ambassadors,

to

to controversies

between a state and citizens

between citizens of different

states,

be-

same state claiming lands under
states, and between a state, or the citi-

of the

grants of different

zens thereof, and foreign states, citizens, or subjects.
2.

In

nisters,

all

cases affecting ambassadors, other public mi-

and consuls, and those in which a

state shall be a

supreme court shall have original jurisdiction.
In all the other cases before mentioned, the supreme court
shall have appellate jurisdiction, both as to law and fact,

party, the

with such exceptions, and under such regulations, as the
congress shall make.

;

382
3.

APPENDIX.
The

crimes, except in cases of impeach-

trial of all

ment, shall be by jury
state

and such

;

trial shall

be held in the

where the said crimes shall have been committed

but when not committed within any state, the

be at such place or places as the congress

trial shall

may hy law

have directed.

Section
1.

in

3.

Treason against the United States shall consist only

levying war against them, or in adhering

enemies, giving them aid and comfort.

No

to

their

person shall

be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open
court.
2.

The congress

shall

have power to declare the punish-

ment, of treason, but no attainder of treason shall work

corruption of blood, or forfeiture, except during the

life

of

the person attainted.

ARTICLE
Section
1.

IV.
1.

Full faith and credit shall be given in each state to

the public acts, records, and judicial proceedings of every

other state.
scribe the

And

manner

the congress
in

may by

which such

acts,

general laws prerecords,

and pro-

ceedings shall be proved, and the effect thereof.

Section
1.

The

A

shall be entitled to all

and immunities of citizens in the several states.
person charged in any state with treason, felony,

privileges
2.

citizens of each state

2.

;

APPENDIX.
or other crime,

who

383

shall flee from justice,

in another state, shall, on

demand

and be found

of the executive au-

thority of the state from which he fled, be delivered up,

be removed to the state having jurisdiction of

to

the

crime.

No

3.

person held to service or labour in one

under the laws

state,

thereof, escaping into another, shall, in

consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered

up on claim of the party

may be

to

whom

Section

New

1.

this

such service or labour

due.

Union

states
;

may be

3.

admitted by the congress into

but no new state shall be formed or erected

within the jurisdiction of any other state; nor any state

be formed by the junction of two or more

states, or parts

of states, without the consent of the legislatures of the
states concerned, as well as of the congress.
2.

make

The congress
all

shall

have power

to

dispose of and

needful rules and regulations respecting the

ritory or other property belonging to the

and nothing in
to prejudice

this Constitution shall

ter-

United States

be so construed as

any claims of the United States, or of any

particular state.

Section

4.

The United States shall guarantee to every state in
Union a republican form of government, and shall
protect each of them against invasion and on application
1.

this

;

of the legislature, or of the executive (when the legisla-

ture cannot be convened), against domestic violence.

;

384

APPENDIX.

ARTICLE
1.

shall

V.

The congress, whenever two-thirds of both houses
deem it necessary, shall propose amendments to this

Constitution, or, on the application of the legislatures of
two-thirds of the several states, shall call a convention for

proposing amendments, which, in either case, shall be

and purposes,

valid to all intents
tion,

when

ratified

as part of this Constitu-

by the legislatures of three-fourths of

the several states or by conventions in three-fourths thereof,

mode

as the one or the other

posed by the congress

:

which may be made prior

hundred and

of ratification

to

eight, shall in

its

state,

without

be pro-

the year one thousand eight

any manner

affect the first

and fourth clauses in the ninth section of the

and that no

may

Provided, that no amendment,

its

first article

consent, shall be deprived of

equal suffrage in the senate.

ARTICLE
1.

VI.

All debts contracted and engagements entered into,

before the adoption of this Constitution, shall be as valid

against the United States under this Constitution, as under

the confederation.
2.

This Constitution, and the laws of the United States

which

shall

be made in pursuance thereof

;

and

all treaties

made, or which shall be made, under the authority of the

United States, shall be the supreme law of the land

;

and

the judges in every state shall be bound thereby, any-

thing in the constitution or laws of any state to the contrary notwithstanding.

The senators and representatives before mentioned,
and the members of the several state legislatures, and all
3.

APPENDIX.

385

executive and judicial officers, both of the United States

and of the several

states, shall

be bound, by oath or

af-

firmation, to support this Constitution; but no religious
test shall ever

be required as a qualification to any

office

or public trust under the United State3.

ARTICLE
1.

The

ratification of the

VII.

conventions of nine states

shall be sufficient for the establishment of this Constitu-

tion

between the

states so ratifying the same.

386

APPENDIX.

AMENDMENTS TO THE CONSTITUTION.

ARTICLE
Congress

shall

I.

make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press

;

or the

right of the people peaceably to assemble, and to petition

the government for a redress of grievances.

ARTICLE

A

II.

well-regulated militia being necessary to the security

of a free state, the right of the people to

arms

keep and bear

shall not be infringed.

ARTICLE

III.

"No soldier shall, in time of peace, be quartered in

house without the consent of the owner
war, but in a

manner

to

any

nor in time of

be prescribed by law.

ARTICLE
The

;

IV.

right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and

seizures, shall not be violated

issue,

but upon probable cause,

affirmation,

;

and no warrants

shall

supported by oath or

and particularly describing the place

searched, and the persons or things

to

be seized.

to

be

APPENDIX.

ARTICLE
No

387

V.

person shall be held to answer for a capital or other-

wise infamous crime, unless on a presentment or indict-

ment

of a grand jury, except in cases arising in the land or

when

naval forces, or in the militia,

in actual service, in

time of war or public danger; nor shall any person be subject for the

or limb

same

offence to be twice put in jeopardy of life

nor shall he be compelled, in any criminal case,

;

to be a witness against himself, nor be deprived of
liberty, or property, without

due process of law

;

life,

nor shall

private property be taken for public use without just com-

pensation.

ARTICLE
In

all

VI.

criminal prosecutions, the accused shall enjoy the

right to a speedy

and public

trial,

by an impartial jury of

the state and district wherein the crime shall have been

committed, which
tained by law

;

district shall

and

to

have been previously ascer-

be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against

him;

to have compulsory process for obtaining

witnesses in his favour;

and

to

have the assistance of

counsel for his defence.

ARTICLE
In

common

suits at

law,

VII.

where the value in controversy

shall exceed twenty dollars, the right of trial

be preserved

;

and no

fact tried

by jury

shall

by a jury shall be other-

wise re-examined in any court of the United States, than
according to the rules of the

common

ARTICLE

law.

VIII.

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments

inflicted.

APPENDIX.

388

ARTICLE
The enumeration

IX.

in the Constitution of certain rights

shall not be construed to

deny or disparage others retained

by the people.

ARTICLE
The powers not delegated

X.

to the

Constitution, nor prohibited by

it

United States by the
to the

states, are re-

served to the states respectively, or to the people.

ARTICLE XL
The

judicial

power of the United States

shall not be

construed to extend to any suit in law or equity, com-

menced

or prosecuted against one of the United States by

citizens of another state, or

by citizens or subjects of any

foreign state.

ARTICLE
1.

The

meet in their respective states,
and vice-president, one of
not be an inhabitant of the same state

electors shall

and vote by ballot

whom,

XII.

for president

at least, shall

with themselves

;

they shall

name

in the ballots the per-

son voted for as president, and in distinct ballots the person voted for as vice-president

;

and they

shall

tinct lists of all persons voted for as president,

make

dis-

and of

all

persons voted for as vice-president, and of the number of
votes for each, which list they shall sign and certify, and

transmit sealed to the seat of the government of the United
States, directed to the president of the senate

;

the pre-

sident of the senate shall, in the presence of the senate

and house of representatives, open

all

the certificates, and

the votes shall then be counted: the person having the
greatest

number

of votes for president, shall be the pre-

;

APPENDIX.
sident, if such

number be a majority

of electors appointed

;

389
of the whole

number

and if no person have such majority,

then from the persons having the highest numbers, not
exceeding three, on the

list

of those voted for, as president,

the house of representatives shall choose immediately, by
ballot, the president.

But

in choosing the president, the

votes shall be taken by states, the representation from

each state having one vote; a quorum for this purpose
shall consist of a

member

or

the states, and a majority of
sary to a choice.

And if the

members from
all

two-thirds of

the states shall be neces-

house of representatives shall

not choose a president whenever the right of choice shall

March next

devolve upon them, before the fourth day of

following, then the vice-president shall act as president, as

in the case of the death or other constitutional disability
of the president.
2.

The person having

the greatest

number

vice-president, shall be the vice-president,

if

of votes as

such number

be a majority of the whole number of electors appointed

and

if

no person have a majority, then from the two highest

numbers on the list, the senate shall choose the vice-president a quorum for the purpose shall consist of two-thirds
of the whole number of senators, a majority of the whole
:

number shall be necessary to a choice.
3. But no person constitutionally ineligible

to the office

of president, shall be eligible to that of vice-president of

the United States.

Albemarle Street,
January, 1854.

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