North America Volume II Part 9

The very preamble of the const.i.tution at once declares that the people of the different States do hereby join themselves together with the view of forming themselves into one nation. "We, the people of the United States, in order to form a more perfect Union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this const.i.tution for the United States of America." Here a great step was made towards centralization,--towards one national government and the binding together of the States into one nation.

But from that time down to the present, the contest has been going on, sometimes openly and sometimes only within the minds of men, between the still alleged sovereignty of the individual States and the acknowledged sovereignty of the central Congress and central Government. The disciples of Jefferson,--even though they have not known themselves to be his disciples,--have been carrying on that fight for State rights which has ended in secession; and the disciples of Hamilton,--certainly not knowing themselves to be his disciples,--have been making that stand for central government, and for the one acknowledged republic, which is now at work in opposing secession, and which, even though secession should to some extent be accomplished, will, we may hope, nevertheless, and not the less on account of such secession, conquer and put down the spirit of democracy.

The political contest of parties which is being waged now, and which has been waged throughout the history of the United States, has been pursued on one side in support of that idea of an undivided nationality of which I have spoken,--of a nationality in which the interests of a part should be esteemed as the interests of the whole; and on the other side it has been pursued in opposition to that idea.

I will not here go into the interminable question of slavery,--though it is on that question that the southern or democratic States have most loudly declared their own sovereign rights and their aversion to national interference. Were I to do so I should fail in my present object of explaining the nature of the const.i.tution of the United States. But I protest against any argument which shall be used to show that the const.i.tution has failed because it has allowed slavery to produce the present division among the States. I myself think that the Southern or Gulf States will go. I will not pretend to draw the exact line, or to say how many of them are doomed; but I believe that South Carolina with Georgia, and perhaps five or six others, will be extruded from the Union. But their very extrusion will be a political success, and will, in fact, amount to a virtual acknowledgment in the body of the Union of the truth of that system for which the conservative republican party has contended. If the North obtain the power of settling that question of boundary, the abandonment of those southern States will be a success, even though the privilege of retaining them be the very point for which the North is now in arms.

The first clause of the const.i.tution declares that all the legislative powers granted by the const.i.tution shall be vested in a Congress, which shall consist of a Senate and of a House of Representatives. The House of Representatives is to be rechosen every two years, and shall be elected by the people, such persons in each State having votes for the national Congress as have votes for the legislature of their own States. If therefore South Carolina should choose--as she has chosen--to declare that the electors of her own legislature shall possess a property qualification, the electors of members of Congress from South Carolina must also have that qualification. In Ma.s.sachusetts universal suffrage now prevails, although it is not long since a low property qualification prevailed even in Ma.s.sachusetts. It therefore follows that members of the House of Representatives in Congress need by no means be all chosen on the same principle. As a fact, universal suffrage* and vote by ballot, that is by open voting papers, prevail in the States, but they do not so prevail by virtue of any enactment of the const.i.tution. The laws of the States, however, require that the voter shall have been a resident in the State for some period, and generally either deny the right of voting to negroes, or so hamper that privilege that practically it amounts to the same thing.

*Perhaps the better word would have been manhood suffrage; and even that word should be taken with certain restrictions.

Aliens, minors, convicts, and men who pay no taxes cannot vote.

In some States none can vote unless they can read and write.

In some there is a property qualification. In all there are special restrictions against negroes. There is in none an absolutely universal suffrage. But I keep the name as it best expresses to us in England the system of franchise which has practically come to prevail in the United States.

The Senate of the United States is composed of two senators from each State. These senators are chosen for six years, and are elected in a manner which shows the conservative tendency of the const.i.tution with more signification than perhaps any other rule which it contains.

This branch of Congress, which, as I shall presently endeavour to show, is by far the more influential of the two, is not in any way elected by the people. "The Senate of the United States shall be composed of two senators from each State, _chosen by the legislature thereof_, for six years, and each senator shall have one voice."

The Senate sent to Congress is therefore elected by the State legislatures. Each State legislature has two Houses; and the senators sent from that State to Congress are either chosen by vote of the two Houses voting together--which is, I believe, the mode adopted in most States, or are voted for in the two Houses separately--in which cases, when different candidates have been nominated, the two Houses confer by committees and settle the matter between them.

The conservative purpose of the const.i.tution is here sufficiently evident. The intention has been to take the election of the senators away from the people, and to confide it to that body in each State which may be regarded as containing its best trusted citizens. It removes the senators far away from the democratic element, and renders them liable to the necessity of no popular canvas. Nor am I aware that the const.i.tution has failed in keeping the ground which it intended to hold in this matter. On some points its selected rocks and chosen standing ground have slipped from beneath its feet, owing to the weakness of words in defining and making solid the intended prohibitions against democracy. The wording of the const.i.tution has been regarded by the people as sacred; but the people has considered itself justified in opposing the spirit as long as it revered the letter of the const.i.tution. And this was natural. For the letter of the const.i.tution can be read by all men; but its spirit can be understood comparatively but by few. As regards the election of the senators, I believe that it has been fairly made by the legislatures of the different States. I have not heard it alleged that members of the State legislatures have been frequently constrained by the outside popular voice to send this or that man as senator to Was.h.i.+ngton. It was clearly not the intention of those who wrote the const.i.tution that they should be so constrained. But the Senators themselves in Was.h.i.+ngton have submitted to restraint. On subjects in which the people are directly interested they submit to instructions from the legislatures which have sent them as to the side on which they shall vote, and justify themselves in voting against their convictions by the fact that they have received such instructions.

Such a practice, even with the members of a House which has been directly returned by popular election, is, I think, false to the intention of the system. It has clearly been intended that confidence should be put in the chosen candidate for the term of his duty, and that the electors are to be bound in the expression of their opinion by his sagacity and patriotism for that term. A member of a representative House so chosen, who votes at the bidding of his const.i.tuency in opposition to his convictions, is manifestly false to his charge, and may be presumed to be thus false in deference to his own personal interests, and with a view to his own future standing with his const.i.tuents. Pledges before election may be fair, because a pledge given is after all but the answer to a question asked. A voter may reasonably desire to know a candidate's opinion on any matter of political interest before he votes for or against him.

The representative when returned should be free from the necessity of further pledges. But if this be true with a House elected by popular suffrage, how much more than true must it be with a chamber collected together as the Senate of the United States is collected!

Nevertheless it is the fact that many senators, especially those who have been sent to the House as democrats, do allow the State legislatures to dictate to them their votes, and that they do hold themselves absolved from the personal responsibility of their votes by such dictation. This is one place in which the rock which was thought to have been firm has slipped away, and the sands of democracy have made their way through. But with reference to this it is always in the power of the Senate to recover its own ground, and re-establish its own dignity; to the people in this matter the words of the const.i.tution give no authority, and all that is necessary for the recovery of the old practice is a more conservative tendency throughout the country generally. That there is such a conservative tendency no one can doubt; the fear is whether it may not work too quickly and go too far.

In speaking of these instructions given to senators at Was.h.i.+ngton, I should explain that such instructions are not given by all States, nor are they obeyed by all senators. Occasionally they are made in the form of requests, the word "instruct" being purposely laid aside.

Requests of the same kind are also made to representatives, who, as they are not returned by the State legislatures, are not considered to be subject to such instructions. The form used is as follows: "We instruct our senators and request our representatives," &c. &c.

The senators are elected for six years, but the same Senate does not sit entire throughout that term. The whole chamber is divided into three equal portions or cla.s.ses, and a portion goes out at the end of every second year; so that a third of the Senate comes in afresh with every new House of Representatives. The Vice-President of the United States, who is elected with the President, and who is not a senator by election from any State, is the ex-officio President of the Senate. Should the President of the United States vacate his seat by death or otherwise, the Vice-President becomes President of the United States; and in such case the Senate elects its own President pro tempore.

In speaking of the Senate, I must point out a matter to which the const.i.tution does not allude, but which is of the gravest moment in the political fabric of the nation. Each State sends two senators to Congress. These two are sent altogether independently of the population which they represent, or of the number of members which the same State supplies to the Lower House. When the const.i.tution was framed, Delaware was to send one member to the House of Representatives, and Pennsylvania eight; nevertheless, each of these States sent two senators. It would seem strange that a young people, commencing business as a nation on a basis intended to be democratic, should consent to a system so directly at variance with the theory of popular representation. It reminds one of the old days when Yorks.h.i.+re returned two members, and Rutlands.h.i.+re two also. And the discrepancy has greatly increased as young States have been added to the Union, while the old States have increased in population. New York, with a population of about 4,000,000, and with thirty-three members in the House of Representatives, sends two senators to Congress. The new State of Oregon, with a population of 50,000 or 60,000, and with one member in the House of Representatives, sends also two senators to Congress. But though it would seem that in such a distribution of legislative power, the young nation was determined to preserve some of the old fantastic traditions of the mother-country which it had just repudiated; the fact, I believe, is that this system, apparently so opposed to all democratic tendencies, was produced and specially insisted upon by democracy itself. Where would be the State sovereignty and individual existence of Rhode Island and Delaware, unless they could maintain, in at least one House of Congress, their State equality with that of all other States in the Union? In those early days, when the const.i.tution was being framed, there was nothing to force the small States into a Union with those whose populations preponderated. Each State was sovereign in its munic.i.p.al system, having preserved the boundaries of the old colony, together with the liberties and laws given to it under its old colonial charter. A union might be, and no doubt was, desirable; but it was to be a union of sovereign States, each retaining equal privileges in that union, and not a fusion of the different populations into one h.o.m.ogeneous whole. No State was willing to abandon its own individuality, and least of all were the small States willing to do so. It was therefore ordained that the House of Representatives should represent the people, and that the Senate should represent the States.

From that day to the present time the arrangement of which I am speaking has enabled the democratic or southern party to contend at a great advantage with the republicans of the North. When the const.i.tution was founded, the seven northern States--I call those northern which are now free-soil States, and those southern in which the inst.i.tution of slavery now prevails--the seven northern States were held to be ent.i.tled by their population to send thirty-five members to the House of Representatives, and they sent fourteen members to the Senate. The six southern States were ent.i.tled to thirty members in the Lower House, and to twelve senators. Thus the proportion was about equal for the North and South. But now,--or rather in 1860, when secession commenced,--the northern States, owing to the increase of population in the North, sent one hundred and fifty representatives to Congress, having nineteen States and thirty-eight senators; whereas the South, with fifteen States and thirty senators, was ent.i.tled by its population to only ninety representatives, although by a special rule in its favour, which I will presently explain, it was in fact allowed a greater number of representatives in proportion to its population than the North.

Had an equal balance been preserved, the South, with its ninety representatives in the Lower House, would have but twenty-three senators, instead of thirty, in the Upper.* But these numbers indicate to us the recovery of political influence in the North, rather than the pride of the power of the South; for the South, in its palmy days, had much more in its favour than I have above described as its position in 1860. Kansas had then just become a free-soil State, after a terrible struggle, and shortly previous to that Oregon and Minnesota, also free States, had been added to the Union. Up to that date the slave States sent thirty senators to Congress, and the free States only thirty-two. In addition to this when Texas was annexed and converted into a State, a clause was inserted into the Act giving authority for the future subdivision of that State into four different States as its population should increase, thereby enabling the South to add senators to its own party from time to time, as the northern States might increase in number.

*It is worthy of note that the new northern and western States have been brought into the Union by natural increase and the spread of population. But this has not been so with the new southern States. Louisiana and Florida were purchased, and Texas was--annexed.

And here I must explain, in order that the nature of the contest may be understood, that the senators from the South maintained themselves ever in a compact body, voting together, true to each other, disciplined as a party, understanding the necessity of yielding in small things in order that their general line of policy might be maintained. But there was no such system, no such observance of political tactics among the senators of the North. Indeed, they appear to have had no general line of politics, having been divided among themselves on various matters. Many had strong southern tendencies, and many more were willing to obtain official power by the help of southern votes. There was no great bond of union among them, as slavery was among the senators from the South. And thus, from these causes, the power of the Senate and the power of the Government fell into the hands of the southern party.

I am aware that in going into these matters here I am departing somewhat from the subject of which this chapter is intended to treat; but I do not know that I could explain in any shorter way the manner in which those rules of the const.i.tution have worked by which the composition of the Senate is fixed. That State basis, as opposed to a basis of population in the Upper House of Congress, has been the one great political weapon, both of offence and defence, in the hands of the democratic party. And yet I am not prepared to deny that great wisdom was shown in the framing of the const.i.tution of the Senate. It was the object of none of the politicians then at work to create a code of rules for the entire governance of a single nation such as is England or France. Nor, had any American politician of the time so desired, would he have had reasonable hope of success. A federal union of separate sovereign States was the necessity, as it was also the desire, of all those who were concerned in the American policy of the day; and I think it may be understood and maintained that no such federal union would have been just, or could have been accepted by the smaller States, which did not in some direct way recognize their equality with the larger States. It is moreover to be observed, that in this, as in all matters, the claims of the minority were treated with indulgence. No ordinance of the const.i.tution is made in a n.i.g.g.ardly spirit. It would seem as though they who met together to do the work had been actuated by no desire for selfish preponderance or individual influence. No ambition to bind close by words which shall be exacting as well as exact is apparent. A very broad power of interpretation is left to those who were to be the future interpreters of the written doc.u.ment.

It is declared that "Representation and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers," thereby meaning that representation and taxation in the several States shall be adjusted according to the population. This clause ordains that throughout all the States a certain amount of population shall return a member to the Lower House of Congress,--say one member to 100,000 persons, as is I believe about the present proportion,--and that direct taxation shall be levied according to the number of representatives. If New York return thirty-three members and Kansas one, on New York shall be levied, for the purposes of the United States' revenue, thirty-three times as much direct taxation as on Kansas. This matter of direct taxation was not then, nor has it been since, matter of much moment. No direct taxation has. .h.i.therto been levied in the United States for national purposes. But the time has now come when this proviso will be a terrible stumbling-block in the way.

But before we go into that matter of taxation, I must explain how the South was again favoured with reference to its representation. As a matter of course no slaves, or even negroes--no men of colour--were to vote in the southern States. Therefore, one would say, that in counting up the people with reference to the number of the representatives, the coloured population should be ignored altogether. But it was claimed on behalf of the South that their property in slaves should be represented, and in compliance with this claim, although no slave can vote or in any way demand the services of a representative, the coloured people are reckoned among the population. When the numbers of the free persons are counted, to this number is added "three-fifths of all other persons." Five slaves are thus supposed to represent three white persons. From the wording, one would be led to suppose that there was some other category into which a man might be put besides that of free or slave! But it may be observed, that on this subject of slavery the framers of the const.i.tution were tender-mouthed. They never speak of slavery or of a slave. It is necessary that the subject should be mentioned, and therefore we hear first of persons other than free, and then of persons bound to labour!

Such were the rules laid down for the formation of Congress, and the letter of those rules has, I think, been strictly observed. I have not thought it necessary to give all the clauses, but I believe I have stated those which are essential to a general understanding of the basis upon which Congress is founded. A reference to the Appendix will show all those which I have omitted.

The const.i.tution ordains that members of both the Houses shall be paid for their time, but it does not decree the amount. "The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States." In the remarks which I have made as to the present Congress I have spoken of the amount now allowed. The understanding, I believe, is that the pay shall be enough for the modest support of a man who is supposed to have raised himself above the heads of the crowd. Much may be said in favour of this payment of legislators, but very much may also be said against it. There was a time when our members of the House of Commons were ent.i.tled to payment for their services, and when, at any rate, some of them took the money. It may be that with a new nation such an arrangement was absolutely necessary. Men whom the people could trust, and who would have been able to give up their time without payment, would not have probably been found in a new community. The choice of senators and of representatives would have been so limited that the legislative power would have fallen into the hands of a few rich men. Indeed it may be said that such payment was absolutely necessary in the early days of the life of the Union. But no one, I think, will deny that the tone of both Houses would be raised by the gratuitous service of the legislators. It is well known that politicians find their way into the Senate and into the Chamber of Representatives solely with a view to the loaves and fishes. The very word "politician" is foul and unsavoury throughout the States, and means rather a political blackleg than a political patriot. It is useless to blink this matter in speaking of the politics and policy of the United States. The corruption of the venial politicians of the nation stinks aloud in the nostrils of all men. It behoves the country to look to this.

It is time now that she should do so. The people of the nation are educated and clever. The women are bright and beautiful. Her charity is profuse; her philanthropy is eager and true; her national ambition is n.o.ble and honest,--honest in the cause of civilization. But she has soiled herself with political corruption, and has disgraced the cause of republican government by the dirt of those whom she has placed in her high places. Let her look to it now. She is n.o.bly ambitious of reputation throughout the earth; she desires to be called good as well as great; to be regarded not only as powerful, but also as beneficent. She is creating an army; she is forging cannon and preparing to build impregnable s.h.i.+ps of war. But all these will fail to satisfy her pride, unless she can cleanse herself from that corruption by which her political democracy has debased itself.

A politician should be a man worthy of all honour, in that he loves his country; and not one worthy of all contempt, in that he robs his country.

I must not be understood as saying that every senator and representative who takes his pay is wrong in taking it. Indeed, I have already expressed an opinion that such payments were at first necessary, and I by no means now say that the necessity has as yet disappeared. In the minds of thorough democrats it will be considered much that the poorest man of the people should be enabled to go into the legislature, if such poorest man be worthy of that honour. I am not a thorough democrat, and consider that more would be gained by obtaining in the legislature that education, demeanour, and freedom from political temptation which easy circ.u.mstances produce. I am not, however, on this account inclined to quarrel with the democrats,--not on that account if they can so manage their affairs that their poor and popular politicians shall be fairly honest men. But I am a thorough republican, regarding our own English form of government as the most purely republican that I know, and as such I have a close and warm sympathy with those trans-Atlantic anti-monarchical republicans who are endeavouring to prove to the world that they have at length founded a political Utopia. I for one do not grudge them all the good they can do, all the honour they can win. But I grieve over the evil name which now taints them, and which has accompanied that wider spread of democracy which the last twenty years has produced. This longing for universal suffrage in all things--in voting for the President, in voting for judges, in voting for the representatives, in dictating to senators, has come up since the days of President Jackson, and with it has come corruption and unclean hands. Democracy must look to it, or the world at large will declare her to have failed.

One would say that at any rate the Senate might be filled with unpaid servants of the public. Each State might surely find two men who could afford to attend to the public weal of their country without claiming a compensation for their time. In England we find no difficulty in being so served. Those cities among us in which the democratic element most strongly abounds, can procure representatives to their mind--even though the honour of filling the position is not only not remunerative, but is very costly. I cannot but think that the Senate of the United States would stand higher in the public estimation of its own country if it were an unpaid body of men.

It is enjoined that no person holding any office under the United States shall be a member of either House during his continuance in office. At first sight such a rule as this appears to be good in its nature; but a comparison of the practice of the United States'

Government with that of our own makes me think that this embargo on members of the legislative bodies is a mistake. It prohibits the President's ministers from a seat in either House, and thereby relieves them from the weight of that responsibility to which our ministers are subjected. It is quite true that the United States'

ministers cannot be responsible as are our ministers, seeing that the President himself is responsible and that the Queen is not so.

Indeed, according to the theory of the American const.i.tution, the President has no ministers. The const.i.tution speaks only of the princ.i.p.al officers of the executive departments. "He," the President, "may require the opinion in writing of the princ.i.p.al officer in each of the executive departments." But in practice he has his cabinet, and the irresponsibility of that cabinet would practically cease if the members of it were subjected to the questionings of the two Houses. With us the rule which prohibits servants of the State from going into Parliament is, like many of our const.i.tutional rules, hard to be defined, and yet perfectly understood. It may perhaps be said, with the nearest approach to a correct definition, that permanent servants of the State may not go into Parliament, and that those may do so whose services are political, depending for the duration of their term on the duration of the existing ministry. But even this would not be exact, seeing that the Master of the Rolls and the officers of the army and navy can sit in Parliament. The absence of the President's ministers from Congress certainly occasions much confusion, or rather prohibits a more thorough political understanding between the executive and the legislative than now exists. In speaking of the Government of the United States in the next chapter, I shall be constrained to allude again to this subject.*

*It will be alleged by Americans that the introduction into Congress of the President's ministers would alter all the existing relations of the President and of Congress, and would at once produce that Parliamentary form of Government which England possesses, and which the States have chosen to avoid.

Such a change would elevate Congress, and depress the President.

No doubt this is true. Such elevation, however, and such depression seem to me to be the two things needed.

The duties of the House of Representatives are solely legislative.

Those of the Senate are legislative and executive--as with us those of the Upper House are legislative and judicial. The House of Representatives is always open to the public. The Senate is so open when it is engaged on legislative work; but it is closed to the public when engaged in executive session. No treaties can be made by the President, and no appointments to high offices confirmed without the consent of the Senate; and this consent must be given--as regards the confirmation of treaties--by two-thirds of the members present.

This law gives to the Senate the power of debating with closed doors upon the nature of all treaties, and upon the conduct of the Government as evinced in the nomination of the officers of State.

It also gives to the Senate a considerable control over the foreign relations of the Government. I believe that this power is often used, and that by it the influence of the Senate is raised much above that of the Lower House. This influence is increased again by the advantage of that superior statecraft and political knowledge which the six years of the senator gives him over the two years of the representative. The tried representative, moreover, very frequently blossoms into a senator; but a senator does not frequently fade into a representative. Such occasionally is the case, and it is not even unconst.i.tutional for an ex-President to re-appear in either House.

Mr. Benton, after thirty years' service in the Senate, sat in the House of Representatives. Mr. Crittenden, who was returned as senator by Kentucky, I think seven times, now sits in the Lower House; and John Quincy Adams appeared as a representative from Ma.s.sachusetts after he had filled the Presidential chair.

And, moreover, the Senate of the United States is not debarred from an interference with money bills, as the House of Lords is debarred with us. "All bills for raising revenue," says the seventh section of the first article of the const.i.tution, "shall originate with the House of Representatives, but the Senate may propose or concur with amendments as on other bills." By this the Senate is enabled to have an authority in the money matters of the nation almost equal to that held by the Lower House,--an authority quite sufficient to preserve to it the full influence of its other powers. With us the House of Commons is altogether in the ascendant, because it holds and jealously keeps to itself the exclusive command of the public purse.

Congress can levy custom duties in the United States, and always has done so; hitherto the national revenue has been exclusively raised from custom duties. It cannot levy duties on imports. It can levy excise duties, and is now doing so; hitherto it has not done so. It can levy direct taxes, such as an income-tax and a property-tax; it hitherto has not done so, but now must do so. It must do so, I think I am justified in saying; but its power of doing this is so hampered by const.i.tutional enactment, that it would seem that the const.i.tution as regards this heading must be altered before any scheme can be arranged by which a moderately just income-tax can be levied and collected. This difficulty I have already mentioned, but perhaps it will be well that I should endeavour to make the subject more plain.

It is specially declared, "That all duties, imposts, and excises shall be uniform throughout the United States." And again, "That no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken." And again, in the words before quoted, "Representatives and direct taxes shall be apportioned among the several States which shall be included in this Union, according to their respective numbers." By these repeated rules it has been intended to decree that the separate States shall bear direct taxation according to their population and the consequent number of their representatives; and this intention has been made so clear, that no direct taxation can be levied in opposition to it without an evident breach of the const.i.tution. To explain the way in which this will work, I will name the two States of Rhode Island and Iowa as opposed to each other, and the two States of Ma.s.sachusetts and Indiana as opposed to each other. Rhode Island and Ma.s.sachusetts are wealthy Atlantic States, containing, as regards enterprise and commercial success, the cream of the population of the United States. Comparing them in the ratio of population, I believe that they are richer than any other States. They return between them thirteen representatives, Rhode Island sending two and Ma.s.sachusetts eleven. Iowa and Indiana also send thirteen representatives, Iowa sending two, and being thus equal to Rhode Island; Indiana sending eleven and being thus equal to Ma.s.sachusetts. Iowa and Indiana are western States; and though I am not prepared to say that they are the poorest States of the Union, I can a.s.sert that they are exactly opposite in their circ.u.mstances to Rhode Island and Ma.s.sachusetts.

The two Atlantic States of New England are old established, rich, and commercial. The two western States I have named are full of new immigrants, are comparatively poor, and are agricultural.

Nevertheless any direct taxation levied on those in the East and on those in the West must be equal in its weight. Iowa must pay as much as Rhode Island; Indiana must pay as much as Ma.s.sachusetts.

But Rhode Island and Ma.s.sachusetts could pay without the sacrifice of any comfort to its people, without any sensible suffering, an amount of direct taxation which would crush the States of Iowa and Indiana,--which indeed no tax-gatherer could collect out of those States. Rhode Island and Ma.s.sachusetts could with their ready money buy Iowa and Indiana; and yet the income-tax to be collected from the poor States is to be the same in amount as that collected from the rich States. Within each individual State the total amount of income-tax or of other direct taxation to be levied from that State may be apportioned as the State may think fit; but an income-tax of two per cent. on Rhode Island would probably produce more than an income-tax of ten per cent. in Iowa; whereas Rhode Island could pay an income-tax of ten per cent. easier than could Iowa one of two per cent.

It would in fact appear that the const.i.tution as at present framed is fatal to all direct taxation. Any law for the collection of direct taxation levied under the const.i.tution would produce internecine quarrel between the western States and those which border on the Atlantic. The western States would not submit to the taxation. The difficulty which one here feels is that which always attends an attempt at finality in political arrangements. One would be inclined to say at once that the law should be altered, and that as the money required is for the purposes of the Union and for State purposes, such a change should be made as would enable Congress to levy an income-tax on the general income of the nation. But Congress cannot go beyond the const.i.tution.

It is true that the const.i.tution is not final, and that it contains an express article ordaining the manner in which it may be amended.

And perhaps I may as well explain here the manner in which this can be done, although by doing so, I am departing from the order in which the const.i.tution is written. It is not final, and amendments have been made to it. But the making of such amendments is an operation so ponderous and troublesome, that the difficulty attached to any such change envelops the const.i.tution with many of the troubles of finality. With us there is nothing beyond an act of parliament. An act of parliament with us cannot be unconst.i.tutional. But no such power has been confided to Congress, or to Congress and the President together. No amendment of the const.i.tution can be made without the sanction of the State legislatures. Congress may propose any amendments, as to the expediency of which two-thirds of both Houses shall be agreed; but before such amendments can be accepted they must be ratified by the legislatures of three-fourths of the States, or by conventions in three-fourths of the States, "as the one or the other mode of ratification may be proposed by Congress." Or Congress, instead of proposing the amendments, may, on an application from the legislatures of two-thirds of the different States, call a convention for the proposing of them. In which latter case the ratification by the different States must be made after the same fas.h.i.+on as that required in the former case. I do not know that I have succeeded in making clearly intelligible the circ.u.mstances under which the const.i.tution can be amended; but I think I may have succeeded in explaining that those circ.u.mstances are difficult and tedious. In a matter of taxation why should States agree to an alteration proposed with the very object of increasing their proportion of the national burden? But unless such States will agree,--unless Rhode Island, Ma.s.sachusetts, and New York will consent to put their own necks into the yoke,--direct taxation cannot be levied on them in a manner available for national purposes. I do believe that Rhode Island and Ma.s.sachusetts at present possess a patriotism sufficient for such an act. But the mode of doing the work will create disagreement, or at any rate, tedious delay and difficulty. How shall the const.i.tution be const.i.tutionally amended while one-third of the States are in revolt?

In the eighth section of its first article the Const.i.tution gives a list of the duties which Congress shall perform,--of things, in short, which it shall do, or shall have power to do:--To raise taxes; to regulate commerce and the naturalization of citizens; to coin money and protect it when coined; to establish postal communication; to make laws for defence of patents and copyrights; to const.i.tute national courts of law inferior to the Supreme Court; to punish piracies; to declare war; to raise, pay for, and govern armies, navies, and militia; and to exercise exclusive legislation in a certain district which shall contain the seat of Government of the United States, and which is therefore to be regarded as belonging to the nation at large, and not to any particular State. This district is now called the district of Columbia. It is situated on the Potomac and contains the city of Was.h.i.+ngton.

Then the ninth section of the same article declares what Congress shall not do. Certain immigration shall not be prohibited; _the privilege of the writ of habeas corpus shall not be suspended_, except under certain circ.u.mstances; no ex post facto law shall be pa.s.sed; no direct tax shall be laid unless in proportion to the census; no tax shall be laid on exports; no money shall be drawn from the treasury but by legal appropriation; no t.i.tle of n.o.bility shall be granted.

The above are lists or catalogues of the powers which Congress has, and of the powers which Congress has not; of what Congress may do, and of what Congress may not do; and having given them thus seriatim, I may here perhaps be best enabled to say a few words as to the suspension of the privilege of the writ of habeas corpus in the United States. It is generally known that this privilege has been suspended during the existence of the present rebellion very many times; that this has been done by the executive, and not by Congress; and that it is maintained by the executive, and by those who defend the conduct of the now acting executive of the United States, that the power of suspending the writ has been given by the const.i.tution to the President, and not to Congress. I confess that I cannot understand how any man, familiar either with the wording or with the spirit of the const.i.tution should hold such an argument. To me it appears manifest that the executive, in suspending the privilege of the writ without the authority of Congress, has committed a breach of the const.i.tution. Were the case one referring to our British const.i.tution, a plain man, knowing little of Parliamentary usage, and nothing of law lore, would probably feel some hesitation in expressing any decided opinion on such a subject, seeing that our const.i.tution is unwritten. But the intention has been that every citizen of the United States should know and understand the rules under which he is to live,--and he that runs may read.

As this matter has been argued by Mr. Horace Binney, a lawyer of Philadelphia, much trusted, of very great and of deserved eminence throughout the States, in a pamphlet in which he defends the suspension of the privilege of the writ by the President, I will take the position of the question as summed up by him in his last page, and compare it with that clause in the const.i.tution by which the suspension of the privilege under certain circ.u.mstances is decreed; and to enable me to do this I will, in the first place, quote the words of the clause in question:--

"The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it." It is the second clause of that section which states what Congress shall not do.

Mr. Binney argues as follows:--"The conclusion of the whole matter is this: that the const.i.tution itself is the law of the privilege, and of the exception to it; that the exception is expressed in the const.i.tution, and that the const.i.tution gives effect to the act of suspension when the conditions occur; that the conditions consist of two matters of fact,--one a naked matter of fact, and the other a matter-of-fact conclusion from facts, that is to say, rebellion and the public danger, or the requirement of public safety." By these words Mr. Binney intends to imply that the const.i.tution itself gave the privilege of the writ of habeas corpus, and itself prescribes the taking away of that privilege under certain circ.u.mstances. But this is not so. The const.i.tution does not prescribe the suspension of the privilege of the writ under any circ.u.mstances. It says that it shall not be suspended except under certain circ.u.mstances. Mr. Binney's argument, if I understand it, then goes on as follows. As the const.i.tution prescribes the circ.u.mstances under which the privilege of the writ shall be suspended, the one circ.u.mstance being the naked matter-of-fact rebellion, and the other circ.u.mstance the public safety supposed to have been endangered by such rebellion,--which Mr.

Binney calls a matter-of-fact conclusion from facts, the const.i.tution must be presumed itself to suspend the privilege of the writ. Whether the President or Congress be the agent of the const.i.tution in this suspension is not matter of moment. Either can only be an agent, and as Congress cannot act executively, whereas the President must ultimately be charged with the executive administration of the order for that suspension, which has in fact been issued by the const.i.tution itself, therefore the power of exercising the suspension of the writ may properly be presumed to be in the hands of the President, and not to be in the hands of Congress.

If I follow Mr. Binney's argument, it amounts to so much. But it seems to me that Mr. Binney is wrong in his premises, and wrong in his conclusion. The article of the const.i.tution in question does not define the conditions under which the privilege of the writ shall be suspended. It simply states that this privilege shall never be suspended, except under certain conditions. It shall not be suspended unless when the public safety may require such suspension on account of rebellion or invasion. Rebellion or invasion is not necessarily to produce such suspension. There is indeed no naked matter of fact to guide either President or Congress in the matter, and therefore I say that Mr. Binney is wrong in his premises. Rebellion or invasion might occur twenty times over, and might even endanger the public safety, without justifying the suspension of the privilege of the writ under the const.i.tution. I say also that Mr. Binney is wrong in his conclusion. The public safety must require the suspension before the suspension can be justified, and such requirement must be a matter for judgment, and for the exercise of discretion. Whether or no there shall be any suspension is a matter for deliberation,--not one simply for executive action, as though it were already ordered. There is no matter-of-fact conclusion from facts. Should invasion or rebellion occur, and should the public safety, in consequence of such rebellion or invasion, require the suspension of the privilege of the writ, then, and only then, may the privilege be suspended. But to whom is the power, or rather the duty, of exercising this discretion delegated? Mr. Binney says that "there is no express delegation of the power in the const.i.tution." I maintain that Mr. Binney is again wrong, and that the const.i.tution does expressly delegate the power, not to the President, but to Congress. This is done so clearly, to my mind, that I cannot understand the misunderstanding which has existed in the States upon the subject. The first article of the const.i.tution treats "of the legislature." The second article treats "of the executive." The third treats "of the judiciary." After that there are certain "miscellaneous articles," so called. The eighth section of the first article gives, as I have said before, a list of things which the legislature or Congress shall do. The ninth section gives a list of things which the legislature or Congress shall not do. The second item in this list is the prohibition of any suspension of the privilege of the writ of habeas corpus, except under certain circ.u.mstances. This prohibition is therefore expressly placed upon Congress, and this prohibition contains the only authority under which the privilege can be const.i.tutionally suspended. Then comes the article on the executive, which defines the powers that the President shall exercise. In that article there is no word referring to the suspension of the privilege of the writ. He that runs may read.

I say, therefore, that Mr. Lincoln's Government has committed a breach of the const.i.tution in taking upon itself to suspend the privilege;--a breach against the letter of the const.i.tution. It has a.s.sumed a power which the const.i.tution has not given it,--which, indeed, the const.i.tution, by placing it in the hands of another body, has manifestly declined to put into the hands of the executive; and it has also committed a breach against the spirit of the const.i.tution. The chief purport of the const.i.tution is to guard the liberties of the people, and to confide to a deliberative body the consideration of all circ.u.mstances by which those liberties may be affected. The President shall command the army; but Congress shall raise and support the army. Congress shall declare war. Congress shall coin money. Congress, by one of its bodies, shall sanction treaties. Congress shall establish such law courts as are not established by the const.i.tution. Under no circ.u.mstances is the President to decree what shall be done. But he is to do those things which the const.i.tution has decreed or which Congress shall decree.

It is monstrous to suppose that power over the privilege of the writ of habeas corpus would, among such a people, and under such a const.i.tution, be given without limit to the chief officer, the only condition being that there should be some rebellion. Such rebellion might be in Utah territory; or some trouble in the uttermost bounds of Texas would suffice. Any invasion, such as an inroad by the savages of Old Mexico upon New Mexico, would justify an arbitrary President in robbing all the people of all the States of their liberties! A squabble on the borders of Canada would put such a power into the hands of the President for four years; or the presence of an English frigate in the St. Juan channel might be held to do so. I say that such a theory is monstrous.

And the effect of this breach of the const.i.tution at the present day has been very disastrous. It has taught those who have not been close observers of the American struggle to believe that, after all, the Americans are indifferent as to their liberties. Such pranks have been played before high heaven by men utterly unfitted for the use of great power, as have scared all the nations. Mr. Lincoln, the President by whom this unconst.i.tutional act has been done, apparently delegated his a.s.sumed authority to his minister, Mr. Seward. Mr.