The trial of the Constitution

Front matter

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CORNELL UNJVERSITY LIBRARY

Contents

PASE Pbeface, V

CHAPTEE r.

A WRITTEN CONSTITUTION.

Chapter II. Union

Our Constitution partly new and partly old — The English Government the model of ours, so far as circumstances permitted — On all questions we should therefore ask first, what was the English law ? — Nothing new in the American Union — A pattern for it

CONTENTS. XI

existed in " The United Kingdom," and in the relation of the British Colonies to the mother country — Love of local power a characteristic of the Saxon race — The British Union — Conquest of the Islands by the Saxons — By the Normans — Qualities of race explain English history — The ruling principle of the English Government is central combined with local power — Ireland — Its conquest and union with England — Scotland — Its independence and union with England — Similarity between the Act of Union with Scotland and our Constitution — What is the law of the English Union with Scotland and Ireland 7 — What is the law of the English Union with the Colonies? — Resistance of the American Colonies to the Government — The principle involved — The Imperial power of Parliament — Why our ancestors withdrew from the British Union — That Union their model when they came to make one for themselves — What is and must be the law of the American Union ? — Union of the Colonies before Independence — The Confederation — Its defects — A Convention appointed to make the Constitution — Necessary powers of the Government to preserve or dissolve the Union — Constitutional provisions — Bishop Warburton on the nature of an incorporate Union — Whatever power be ascribed to the Government, it is always under the control of the States and the people — Power of the Government under the Constitution is adequate to the exigencies of the Union — It has power to preserve or dissolve it — The extent of the country forbids the hope of a perpetual Union — How it may be dissolved by consent and the permission of the Government — The right of secession — ^Power of the Government to permit and regulate secession — Power of the Government to expel a State from the Union — Utah — Civilization depends on race — The Saxon race and civilization do not flourish in the South — In the South we have the black race — Its influence on civilization — A time may come when Union with the South will be impossible — The Government must have power to exclude the South from the Union — The rebellion — The objects of the war on the part of the Government are the vindication of its authority, and the restoration of the Union — What the Northern people may choose to ' do — The Government must have unlimited power, or give place

XU CONTENTS.

to another which has — Summary of the conclusions of this and the preceding Chapters, 99

Chapter III. Executive Power

The Executive branch of our Government a novelty — The English Executive — Its essential feature subordination to the Legislature — The war is testing the Executive power of the Constitution — Two questions have arisen : What is the power of the Government to defend the public safety? and What security does the law afford to personal liberty 7 — Suspension of the Writ of Habeas Corpus by the President — Discussions to which it has given rise — Which department of the Government has authority to suspend the privilege of the Writ ? — What is the English law ? — What is the American law? — Analogy between English and American Executive power — The President has not exclusive right to suspend the privilege of the Writ — Authorities — Statement of the law, English and American — Conduct of Mr. Lincoln in suspending the Writ — His Message to Congress on the subject — Duty of Congress — What ought to be the law — Other elements of the Executive power of our Government yet to be tested by time — The position of a British Monarch, and his functions — The hereditary principle — Dangers of an election of the President by the people — The ballot-box the American substitute for the hereditary principle — The American Executive power tested by the war — DiflSculty of making a good selection by a popular vote — Position of the English Ministry — The mode of electing a President provided by the Constitution — Its failure — Executive patronage — Nominating conventions — The proper organization of Executive power a problem yet to be solved by the American people, . . 202

CONTENTS. XUl

Chapter IV. Slavery

Slavery and the slave trade novelties in oar Constitution — The negro race flourishes in the South — Has become the foundation of Southern society — The Union could not have been made, unless slavery and the slave trade had been protected by the Constitution — They were accepted with reluctance by the Convention — The founders made a mistake — Disastrous consequences of that mistake — The Convention expected slavery to pass away — Why their hopes were disappointed — Nature of the negro race — Its influence on the white race — Cotton — Rise of opinion against the slave trade — Against slavery — Grrowth of the Abolition party — The South alarmed — Its plans of resistance — They all fail — Secession — ^The North roused — Civil war — Mistakes of the South — Slavery was safe in' the Union — The Constitution on its trial with reference to slavery — What shall we do with slavery? — Emancipation as a war measure — Conduct of the Democratic party in relation to the war — "The Union as it was" — Prevailing sentiment of the Northern people — ^The Government now in a position similar to that of the founders of the Constitution — The Sphinx's riddle — Any settlement of the slavery question must satisfy justice for the negro, the rights of the Southern people and the moral sentiment of the Northern people — True position of the negro race in the South — Not that of merchandise — The place assigned to it by the Constitution — Rights of the Southern people in relation to the negro race — The Northern people must participate in its government — The demands of Northern opinion on the subject — The ■ President's plan of gradual emancipation by the aid of Congress — Abolition of slavery in the District of Columbia — Prohibition of it in the Territories — These measures opposed by the Border Slave States and by Northern Democrats — Moral influence of the President's proposal — It does not reach the root of the evil — The principle that men are property is false — There can be no peace or Union till it be taken out of the Constitution — The fugitive

slave law — Why has the negro race power over our destiny 7 The

President's plan of gradual, compensated emancipation cannot xiv CONTENTS.

be executed — Emancipation by the Government without compensation would be unjust — " The Union as it was" impossible — A plan suggested for gradual emancipation — Constitutional difificulties — Weakness of the Government — The plan proposed might be carried out according to the Constitution, . . . • 269

Chapter V. Democeact

No Democracy in the Constitution — The Slave States virtually aristocratic and oligarchic — Have no resemblance to European aristocracies — Decay of the Southern gentry — Increase and triumph of Democracy in the North — Elements of Northern society — The Constitution has failed to prevent civil war — The antagonism between North and South because of slavery produced the war — The Missouri Compromise — Why it was violated — Consequences of the attempt to force slavery into the Territories — These consequences caused the war, and were under the control of the leaders of the Northern Democracy — Why did Northern Democrats unite with the South to repeal the Missouri Compromise ? — And to force slavery into Kansas ? — Why did not the Constitution prevent the war? — Slavery not alone the cause of the war, because the power of slavery depended on its alliance with a Northern party — Abolitionism did not cause the war — Its true character — Southern attacks on Northern rights gave strength to the AboH- ,-,tion party — The Northern people have never been Abolitionists— 1 The Republican party was created by the repeal of the Missouri Compromise and by the aggressions of the South in Kansas — The Republican party never meant to attack slavery as a Southern institutioiy— Mr. Seward and Mr. Lincoln — The party of Mr. Bell — Democracy, as permitted by the Constitution, now on trial — Our troubles caused either by want of intelligence in the people or defects in the machinery of the Government — The dangerous element that caused the war is in the Democratic party — It was divided by the exactions of the South — Mr. Douglas — Social distinctions do not, in this country, form the dividing

CONTENTS, XV

lines of parties — Democracy in the European sense does not exist here — The Celtic race — The Germans — The dangerous elements of American society belong to the Democratic party — [Equality of condition causes the formation of parties — Obedience to party disciplili^j-The party that contains the most ignorance and poverty will be the most submissive to party rules — Analysis of American society explains the cause of the war — Alliance of the South with the Democratic party — The war caused by a small minority of the people and by political leaders — The sway of demagogues — Liberty always in danger during periods of tranquil prosperity — The North was gradually falling under the bondage of slavery and Democracy — The Union valued for the sake of its material benefits — Abolitionism the only moral element left in our politics — Subserviency of Northern opinion to slavery — The spell broken by the fall of Port Sumter — The war caused by the politicians and not by the people, even in the South — This fact proves a defect in the machinery of Government — Nominating Conventions — The low character of public men and universal corruption caused by them — The moral and intellectual standard of the Government below that of the people — The intelligence of the people avails nothing if it cannot be applied because of defects in the Government — Electoral methods — Lessons of the crisis — What is Democracy? — Effects of equal and universal suffrage — Power of the people cannot be applied without suitable machinery — DifiSculty of constructing a Government — Nominating Conventions should be regulated by the Government — Changes likely to be caused by the war — Is the power to cope with the difficult questions to arise granted by the Constitution? — C!an they be disposed of by universal suffrage and nominating Conventions? — The war has developed the intelligence and force of the Northern people — They must always live under free institutions, 318

Appendix

NOTE.

The President's Proclamation of September 22d, 1862, . . .361

THE

TRIAL OF THE CONSTITUTION.

Chapter I. A Written Constitution

Government is a machine for applying principles and imposing rules of conduct essential to the well-being of a people. The machine is very simple or very complex, according to the needs and capacity of the people ; and it varies with these, through all forms, from the chieftainship of a savage tribe up to the highly artificial structure of an English or American constitution. It varies, also, to supply wants created by the progress which a nation makes, upwards or downwards, to higher or lower planes of civilization, and is always " becoming" something that it was not; its "real being," to use Plato's language, consisting of the idea or truth it is intended to manifest and execute.

But the machine called Government, or improvements in it, are not easily invented, and when invented are difficult to get accepted by the people or put in operation. Forms, therefore, should not be rashly altered ; and the only safe foundation for government is custom — another name for experience — the best guide in temporal affairs. No man or assembly of men is wise as the generations or as time, for time reveals imperfections, and the thought of those who feel them is set to work to remedy them as they arise. Therefore Lord Coke says, " If the reason that is dispersed into so many several heads were united into one, yet could he not make such a law as the law of England is ; because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to such perfection, for the government of this realm, as the old rule may be justly verified of it, neminem oportet esse sapientorum legibus ; no man (out of his own private reason) ought to be wiser than the law, which is the perfection of reason."

The meaning of this is, not that the law has attained or can attain ideal perfection, but that the reason of the people is always employed in perfecting it to suit the demands which are made by time, so that the law grows with the mental growth of the nation, and fits its shape and stature always, — thus imitating, in its changes, time itself, which, as Lord Bacon says, " innovateth greatly, but quietly and by degrees, scarcely to be perceived."

Indeed, it is philosophically true that all law, in the long run, is and can be nothing but custom. A statute is a declaration of an old right or a new want. If it supplies the one or guarantees the other, it survives, and, with its constructions and the practice that grows up under it, becomes custom or common law. If it serves neither of these ends, it is repealed or amended, or becomes obsolete, or is bent or twisted by the courts and the people to suit the needs of the hour, until, by judicial legislation and the action of public opinion, it is made to mean something which perhaps those who wrote it never intended. So it is with political or constitutional law. It is either immemorial custom, as in England, or a written constitution in the nature of a statute, altering custom to suit a change of circumstances, or to provide security for violated or newly-acquired rights.

A revolution is usually the occasion which gives birth to alterations in constitutional law, or to renewed guarantees for endangered rights. Should- the Hew constitution prove adequate to the wants and satisfy the wishes of the people, it is cherished as their chief blessing and richest inheritance. Succeeding generations are taught to regard it with love and reverence, and it becomes, after a time, custom or common law,

■ffhicli grows and flourishes in the genial soil of popular affection, grasping the earth with its roots, and spreading above its sheltering canopy. Such were the three organic acts of the British Government : Magna Charta in 1215, the Petition of Right in 1645, and the Bill of Rights in 1688,— neither of them the invention of any man or set of men, neither of them professing to create new rights, but each proclaiming itself a fresh and solemn declaration of ancient law and custom.

These, therefore, have flourished through the centuries, and are yet green and growing. The Constitutions that were the offspring of the French Revolution, — the creations of ingenious men undertaking to provide for the future whilst disregarding the past, — perished with the hour that produced them. Their authors thought themselves wiser than the law, wiser than time. Their elaborate machines, with their cunningly-contrived checks, balances, wheels, and springs, would not work. Events, and the genius of the French people, have made a different sort of Constitution for France.

So entirely is a constitution the outgrowth of the character of a nation, as influenced by circumstances, that no man or set of men, convened for the purpose, can provide fully for the wants of the future. These must be met and satisfied by the men of the future ; and they will either abolish a plan of government that does not suit them, or alter it until it does : for a government is for the people, — not the people for a government, — which must be, not sTfetter, but a dress, — giving protection, but permitting easy and free motion. The less there is in it that is new, the more likely it is to be permanent. But its character can hardly be considered established until it has been tried by prosperity and by adversity, for it was intended for both. When it has stood the strain of poverty and wealth, of obedience and treason, of peace and war, foreign and domestic, and under it the nation has grown constantly in power and civilization, such a government, like a mountain hoary with age, yet covered aiiew with young life, — like a river ever full and ever flowing towards the ocean of the future, and ever bountiful of benefits, — ceases to be regarded as the work of man. Nature adopts it gladly into her race, and gives it rank

■with Andes and Ararat, with the Nile and the Mississippi. Such was the Constitution of the great Indian Empire which flourished for thousands of years before our antiquity began ; such that of Rome, the fountain of modern European law ; and such is the Constitution of England.

It is an unwritten Constitution, by which is meant the custom of the nation in organic law, to be gathered from acts of Parliament, the practice of the Government, historical precedents, and the decisions of the courts. A written constitution is one constructed by one man or an assembly convened for the purpose, granting and distributing political power, and providing security for personal rights. It has two inherent defects, — it cannot adequately provide for the future, and its meaning is necessarily uncertain. No man or convention, or single generation, can furnish wisdom and knowledge to foresee all exigencies that may arise, and supply the needed powers to meet them, and it is impossible to use language, so clear and explicit, as to exclude doubt as to the meaning, often, of the most important clauses. Every English statute cost thousands of pounds in litigation before its construction was settled, and an eminent counsel once said, that he could drive a coach and six through any that could be written. But there is no doubt about a custom, an immemorial usage, which time and habit have impressed upon all minds.

Whilst, therefore, every statute gives rise to disputes about its meaning, the difiiculty in adm^lnistering the common law, is not in the law but in its application to facts. For this reason the idea of codifying the law has been generally abandoned, as likely to cause more uncertainty than it can prevent, and reliance on precedent is preferred, however cumbrous its mass must become in time. After a certain period, leading cases are eliminated, which embody principles, and the undergrowth perishes, for time destroys what it does not need ; as a forest is thinned by the nature of the soil. A code must still be construed, and each construction becomes a precedent. A new crop of precedents is thus produced, not out of the past, but out of the brain of the codifier, and what that crop will be, no one can tell ; as when a wood is cut down, no one can tell what sort of trees will grow in its stead.

The Constitution of this country is yet young. It is young in time, for it is less than a century old; it is young in experience, beca.use it has not gone through the testing trials of great dangers. It was unavoidably a written Constitution. It was the creature of events that made it necessary to combine new things with the old, and to provide for a future that must be different from ^he past. The condition of the people was changed suddenly, and for that reason so was their government. The stream of precedent was rudely stopped, and for the gently moulding touch of time was substituted the constructive hand of experiment. Not rashly or hastily was the work done, but prudently and anxiously, by men who brought to its performance great abilities, much learning, long experience, and, above all, a pure and lofty purpose. But they were men, and no match for the centuries. They were an assembly called fi'om the fleeting present, and not so wise as the generations of the past. Shall we wonder, should it happen, that they were not so wise as the generations of the future ? They gave at least one proof of wisdom by showing their reverence for the past. Unlike the constitution-mongers of tlie French Revolution, what they could retain of its inherited treasures they did.

Those treasures were such principles of the English Constitution as were consistent with the circumstances of the American people. The law is the birthright of an Englishman, and wherever he plants a colony, he carries it with him, so far as it is applicable to the colonial state. The colony is deemed a part of the ancient dominions, and the subjects inhabiting them retain their former rights and privileges.* The first attention of the colonists of New England was directed to the establishment of " the free liberties of freeborn Englishmen," and they proceeded to declare their rights and funda-

* 1 Story oa the Constitution, 5 103-110.

mental laws, almost in the language of Magna Charta.* Their -example was generally folloTved by the other colonies, so that up to the time of the Eevolution, the laws and customs of England prevailed among them not only because they were subjects of the British Government, but by the free choice and acts of the people. Under these laws they lived until the formation of our Constitution; for the government of the Confederation and the attempts at a Union which preceded it, did not affect the rights of the people, as they did not act on individuals, but on States, and by means of their authority. It was found that union was indispensable to safety, and that a compact or league of sovereign communities was not a union, neither was it a Government, because it was deficient in power to enforce its own laws, and a Government that could make itself obeyed and respected was as necessary as union.

The difiicult task, therefore, imposed by the Revolution was to transfer to a new Government of the Union, the control over persons and things, for national purposes, which had been exercised severally by the Colonial Governments, without encroaching upon the proper independence of the Colonies, or States, as they became under the Constitution, and at the same time, to preserve to the people all the civil rights and liberties they had enjoyed as British subjects.

The first object was obtained by clothing the new Government with power to execute its laws by its own courts and ofiicers, and these laws, together with the Constitution, were declared to be supreme over the whole country, and over the Government of the States. The second was provided for by limiting the authority of the Eederal Government to national and general objects. It was to represent the whole nation, and was, therefore, to act' only upon the interests of the whole. To secure the precious inheritance of English freedom and its ■ principles, and the guards by which they had been protected, Magna Charta and the Bill of Rights were copied, and the trial by jury and the habeas corpus made parts of the Constitution. In these objects the chief difficulty was the combi-

* 1 Story on the Constitution, ? 59-1 63.

nation of national sovereignty with the independence of the States, of local and genei'al power, the creation of .a harmonious whole, to be at the same time a nation and a confederacy.

The pressing wants of the time could only be supplied by a new Government, and none existed that would supply them. A new Government, contrived by somebody, to satisfy the present need, and also, if possible, to provide for the future ; that is to say, a written Constitution had become a necessity. The people were convinced of this, and as they could not possibly make a Government for themselves, they chose a Convention, composed of their wise men, to make one for them, to contrive a machine by which the objects above stated, of National Union and of private liberty, could be practically obtained for themselves and their posterity forever.

The Convention had before them a certain quantity of old material, valuable because it was old and tried, which they could work up. They had the Articles of Confederation, some of which had proved useful ; the charters, laws and constitutions of the Colonies, the common law of England and the general principles of the English Constitution in relation to the nature of political power, its distribution among several departments, and the appropriate functions of each. They used all these liberally and discreetly, but still the effective machinery was wanted to endow the principles with life and activity. The Convention had not " King, Lords and Commons," and were obliged to invent something to supply their place. In performing this task, they were led, naturally and necessarily, to adhere, as closely as circumstances would permit, to the English model, because it was a good one, and because they were Englishmen and had recently been English subjects.

But the Convention were obliged to serve two masters, first their own idea of what was best, and secondly the people, who had recently been at war with England, whose passion for liberty was at the time excited beyond its ordinary state, who were to pass upon the Constitution, and would probably reject it if too conservative or too English for their taste. The invention or creation, moreover, of an entirely new system of Government is a superhuman undertaking, never yet attempted without signal failure, if indeed it ever was attempted, except in Utopias of Philosophic dreams. A government to work well in practice must accord not only with new circumstances but with old ideas and must, therefore, be partly new and partly old, and more of it must be old than new, for the ideas of the past outnumber those of the present. Our ancestors, therefore, followed the English model as closely as they dared, not perhaps as closely as they wished. The Judiciary is entirely English in most of its features. The Legislature is composed of two houses like the English Pai'liament. The House of Representatives is substantially the same as the House of Commons, and the Senate in its limited number, in its longer term and mode of appointment, has some faint resemblance to the House of Lords. It is the conservative feature of the Government to represent the States as such, and was intended to exercise a restraining influeiice upon the House, which being elected directly by the people, i§ more under the influences of popular passion. The hardest problem was, how to manage the Executive power inherent in every Government, and in constructing this, the Convention departed most widely from the English system. Hereditary royalty was not to be thought of, and yet they were obliged to confer royal power. A new machine to contain and apply it must therefore be contrived, and they did contrive one, unique in its character ; the success of which is yet doubtful.

In another important particular the work of the Convention is generally thought to diifer from the English pattern. They constructed a Government whose powers, it is said, are limited by law. Supreme power, the eminent domain, must of course in every counti*y reside in the people; but in England the whole of it is delegated to the Government, which has no legal fetter on its action, but is theoretically "omnipotent," though the right of revolution or the right of resistance to oppression or injustice or to an attempt to destroy the ancient laws and liberties of the people, impliedly remains with them, of necessity, for it is a natural right. But by our system the people are supposed to liave intrusted the Government Tvith a part only of their power. It is provided that " the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people;" that is to say, the powers not prohibited to the States are reserved to them, and the powers not conferred on the Government are reserved to the people.

Among the powers thus reserved to the people is that of altering the Constitution in the manner prescribed by itself. In England the Constitution may be altered by Parliament. Here, organic changes in the Government, according to received opinions, can be made only by a convention elected for the purpose, and in an appointed manner, by the people ; there, they can be made by an assembly also elected by the people, and for the same purpose, since it has the same power. In both cases the resort is to the people — that is to say, to popular opinion requiring a change. The difference is that in England the whole power of the people is delegated to Parliament, and the power, therefore, is always ready for action, whilst with us it can only be made available by a difficult and uncertain process, slow, though prompt measures may be important, and uncertain in its results, because the consent of three-fourths of the States or of the people, is necessary before an alteration can be made. The English organic law is the custom of the Government. It is in no danger of sudden and great innovations, for it is the nature of custom or habit to change slowly. It is also its nature to be constantly changing, according to the age, circumstances, and mental condition of an individual or a nation. Safe and gradual change may therefore be predicated of the English Constitution, and such in fact has always been its characteristic.