verence the dreams of their youth." They must
eschew the folly and profaneness so prevalent in
the old world, of exalting man, abstractedly and in
dividually, as a piece of God s creation, and de-
spising men in the mass. The statesman in a
London theatre feels his heart in a tumult, while
a deep amen echoes through its chambers at
Hamlet s adoration of humanity ; but not the less,
when he goes home, does he speak slightingly,
compassionately, or protectingly of the masses,
the population, the canaille. He is awestruck
with the grandeur of an individual spirit ; but feels
nothing of the grandeur of a congregated million of
like spirits, because they happen to be far off.
This proves nothing but the short-sightedness of
PARTIES. 81
such a man. Such shortness of sight afflicts some
of the wisest and best men in the n#w world. I
know of one who regards with a humble and reli
gious reverence the three or four spirits which
have their habitation under his roof, and close at
hand ; who begins to doubt and question, in the
face of far stronger outward evidence of good, per
sons who are a hundred miles off ; and has scarcely
any faith left for those who happen to be over the
sea - The true democratic hope cannot coexist
with such distrust.^ Its basis is the unmeasured
scope~ of humanity ; and its rationale the truth,
applicable alike to individuals and nations, that
men are what they are taken for granted to be.
" Countrymen," cries Brutus dying,
" My heart doth joy that yet in all n:y life,
I found no man but lie was true to me."
The philosophy of this fact is clear : it followed
of course from Brutus always supposing that men
were true. Whenever the Americans, or any other
people, shall make integrity their rule, their crite
rion, their invariable supposition, the first princi
ples of political philosophy will be fairly acted out,
and the high democratic hope will be its own jus
tification.
CHAPTER II.
APPARATUS OF GOVERNMENT.
" The true foundation of republican government is the equal
right of every citizen, in his person and property, and in their
management. . Try by this, as a tally, every provision of our con
stitution, and see if it hangs directly on the will of the people."
Jefferson.
THOUGH it be true that the principles of govern
ment are to be deduced more from experience of
human nature than experience of human govern
ments, the institutions in which those principles
are to be embodied must be infinitely modified by
preceding circumstances. Bentham must have for-
fotten this when he oiTered, at sixty-four, to codify
>r several of the United States, and also for Russia.
He proposed to introduce a new set of terms.
These could not, from his want of local knowledge,
have been very specific ; and if general, what was
society to do till the lawyers had done arguing?
How could even a Solomon legislate, three thou
sand miles off, for a republic like that of Connecti
cut, which set out with taking its morals and politics
by handfuls, out of Numbers and Deuteronomy?
or for Virginia, rank with feudal prejudices and
methods? or for Delaware, with its monarchical
APPARATUS OF GOVERNMENT. 33
martyr spirit? or for Louisiana, compounded of
Spain, France, and America ? Though at the time
of the framing of the constitution, the States bore
a strong general resemblance in their forms of go
vernment, endless minor differences existed, mainly
arising from the different tenure on which they had
been held under ffie English crowprr "Some had been
provinces, governed by royal commissions, according
to royal convenience. These were New Hampshire,
New York, Virginia, the Carolinas, and Georgia.
Others had been under propjcieloiy government ; as
Maryland, held under patent, by Lord Baltimore ;
and Pennsylvania and Delaware, held by William
Penn. Others, again, were under charter govern
ments ; ruled and altogether disposed of by political
corporations. Such were Massachusetts, Rhode
Island, and Connecticut. Within the memory of
middle-aged men, the governor of New Hampshire
used to travel in a coach and six, while the go
vernor of the much more important Massachusetts
went on a horse, with Ins wife on a pillion. It is
within the memory of living men how Massachusetts
rose up in rejection of the imposition of a clergy by
England; while the colonial law of Virginia ordained
parsons to be paid yearly six thousand weight of
prime tobacco, in addition to marriage, burial, and
birth-fees; in which days, an unholy pastor, ap
pointed by Lord Baltimore, was seen to ride about
with the church key in one hand, and a pistol in
the other. It is absurd to suppose that communi
ties, where wide differences of customs, prejudices,
and manners still exist, can be, or ought to be,
brought into a state of exact conformity of institu
tions. Diversities, not only of old custom, but of
climate, productions and genealogy, forbid it ; and
reason does not require it. That institutions should
harmonise with the same first principles, is all that
is requisite. . Some, who would not go so far as to
c 5
34 APPARATUS OF GOVERNMENT.
}
offer to codify for countries where they have not
set their foot, are yet apt to ask the use of one or
another institution, to which the Americans seem
to be unreasonably attached. It is a sufficient ge
neral answer that institutions are rarely sudden
and complete inventions. They have usually an
historical origin, even when renovated by revolution.
Their protracted existence, and the attachment of
the people to them are strong presumptions of their
having some use. If their purposes can be better
attained in another way, they will surely be modi
fied. If they are the result of compromise, they
Trill be abolished, according to the invariable law by
fc-hich expediency finally succumbs to principle.
That this will be the fate of certain of the United
States institutions which no one yet dreams of
touching, and few dare to analyze, has been clearly
foreseen, for forty years past, by many of the most
upright and able men in the country* Some of
them entertain an agonizing alarm at the prospect
of change. Others, more reasonably, trust that,
where no large pecuniary interests are at stake, the
\vork of rectifying may very quietly and safely suc
ceed that of reconciling : , and the majority have no
idea of jthe changes which their own hands, or their
childrjen^s, will have to effect. The gradual ripening
for change may be an advantage in more respects
than one. Political changes which are the result
of full conviction in a free people, are pretty sure
to be safe. Time is also allowed, meanwhile, for
men to practice their new lesson of separating the
idea of revolution from the horrors which have no
more natural connexion with it than burning at
the stake has with the firm grasp of speculative
truth.
THE GENERAL GOVERNMENT. 35
SECTION I.
THE GENERAL GOVERNMENT.
" WE, the people of the United States, in order to
form a more perfect union, establish justice, ensure
domestic tranquillity, provide for the common de
fence, promote the general welfare, and secure the
blessings of liberty to ourselves and our posterity,
do ordain and establish this Constitution for the
United States of America."
So much _fo^ the., autboi^ty, and^ the objects of
this celebrated constitution, as set forth in its
preamble.
Its provisions are so well known that it is need
ful only to indicate them. In Europe, the diffi
culty is to avoid supposing the state governments
to be subordinate to the general. " They are co
ordinate departments of one simple and integral
whole." State government legislates and admi
nisters in all affairs which concern its own citizens.
To the federal government are consigned all affairs
which concern citizens, as foreigners from other
states, or as fellow-citizens with all in certain spe
cified relations.
The general objects of the instrument are easily
stated ; and an apparently clear case of separation
between the general and state governments drawn
out upon paper. But the application of the instru
ment to practice is the difficulty.
In this, there are two grand difficulties, among
many of inferior importance. The one is, to con
strue the instrument ; the other is, to bridge over
its awful chasms of compromise.
6 THE GENERAL GOVERNMENT.
There has never been a solemn instrument
drawn up yet without leaving room for varieties of
construction. There never can be, under our pre
sent use of abstract terms ; no two men s abstrac
tions being alike, or discoverably so. Of course,
the profession in this case is, that words are to be
taken according to their just and natural import ;
that there is to be no straining ; that they are to be
judged of according to common sense; and so on.
The old jests against etymologists are enough to
prove how far men are from agreeing what strain
ing is. As to common sense, men respond in uni
son to a revelation of it; but they rarely agree,
a priori, as to what it is. This difficulty is a wholly
unavoidable one. The refuge under it is in the
maxim. " the majority are right." If the case
in dispute be one of judicial import, the citizen
may appeal to the Supreme Court. If it be of a
different nature, it must be left to that other kind
of supreme court, the majority, and the verdict
will be given through the ballot-boxes.
The other difficulty, that of compromise, is de
clared to have been equally unavoidable. Qoijces-
sion, larg^jiuiJUia^concession, was clearly neees-
sar}V-^[o whatexfent, mayijeTanifly conceived
"fr5m-the following extract from the Federalist
To some readers, who arc more interested in the
present workings of the government, than in the
embarrassments of its inventors, this extract may
appear dull. But it is useful to be presented with
an outline of the difficulties incurred in legislating
for a federal republic, both as a fact in political
science ; as a means of forming something like a
just judgment of the framers of the constitution ;
and as a ground of hope that, so much danger hav
ing been surmounted, that which remains may be
also overcome.
This one tells us r that the proposed constiti*-
THE GENERAL GOVERNMENT. 37
tion ought to be rejected, because it is not a con
federation of the States, but a government over
individuals. Another admits, that it ought to be
a government over individuals, to a certain extent,
but by no means to the extent proposed. A third
does not object to the government over individuals,
or ^ 6 the ex leu L proposed rirolrto Ihe want of a
Bill^f Rights; A fuurlli euuiiursrtir the" "absolute
necessity of a Bill of Rights, but contends that it
ought to be declaratory, not of the personal rights
of individuals, but of the rights reserved to the
States in their political capacity. A fifth is of
opinion that a Bill of Rights of any sort would be
suerttnuus aiid^ffiis^la^tn ancl ""{Hal; ~ the ~~plan
wouT3~tie"Tiriexceptionable, but for the fatal power
of regulating the times and places of election. An
objector in a large State exclaims loudly against the
unreasonable equality of representation in the
senate. An objector in a small State is equally
loud against the dangerous inequality in the House
of Representatives. From one quarter, we are
alarmed with the amazing expense, from the num
ber of persons who are to administer the new go
vernment. From another quarter, and sometimes
from the same quarter on another occasion, the cry
is that the Congress will be but the shadow of a re
presentation ; and that the government would be
far less objectionable, if the number of the expenses
were doubled. A patriot in a State that does not
import or export, discerns insuperable objections
against the power of direct taxation. The patri
otic adversary, in a State of great exports and im
ports, is not iesf> dissatisfied that the whole burthen
of taxes may be thrown on consumption. This
politician discovers in the constitution a direct and
irresistible tendency to monarchy. That, is equally
sure that it will end in aristocracy. Another is
puzzled to say which of these shapes it will ulti-
58 THE GENERAL GOVERNMENT.
mately assume, but sees clearly it must be one or
other of them. While a fourth is not wanting, who,
with no less confidence, affirms, that the constitu
tion is so far from having a bias towards either of
these dangers, that the weight on that side will not
be sufficient to keep it upright and firm against its
opposite propensities. With another class of ad
versaries to the constitution, the language is, that
the legislative, executive, and judiciary departments
are intermixed in such a manner as to contradict
all the ideas of regular government, and all the re
quisite precautions in favour of liberty. Whilst this
objection circulates in vague and general expres
sions, there are not a few who lend their sanction
to it. Let each one come forward with his par
ticular explanation, and scarcely any two are ex
actly agreed on the subject. In the eyes of one,
the junction of the senate with the president, in
the responsible function of appointing to offices,
instead of vesting this power in the executive alone,
is the vicious part of the organisation. To another,
the exclusion of the House of Representatives,
whose numbers alone could be a due security
against corruption and partiality in the exercise of
such a power, is equally obnoxious. With a third,
the admission of the president into any share of a
power, which must ever be a dangerous engine in
the hands of -the executive magistrate, is an un
pardonable violation of the maxims of republican
jealousy. No part of the arrangement, according
to some, is more inadmissible than the trial of im
peachments by the Senate, which is alternately a
member both of the legislative and executive de
partments, when this power so evidently belonged
to the judiciary department. We concur fully, re
ply others, in the objection to this part of the
plan ; but we can never agree that a reference of
impeachments to the judiciary authority would b
THE GENERAL GOVERNMENT. 39
an amendment of the error : our principal dislike
to the organisation arises from the extensive
powers already lodged in that department. Even
among the zealous patrons of a council of state, the
most irreconcilable variance is discovered, con
cerning the mode in which it ought to be con
stituted. The demand of one gentleman is, that
the council should consist of a small number, to be
appointed by the most numerous branch of the
legislature. Another would prefer a larger num
ber, and considers it a fundamental condition, that
the appointment should be made by the president
himself."*
It must have cost Mr. Madison some trouble to
vary the mode of expression in putting this host
of objections. We cannot but admire the ingenuity
with which he has brought them into view. But
what should we say to the management which
should reconcile the differences themselves ? Con
cessions, various and large, were obviously neces
sary. I am not about to give a catalogue of what
these actually were. They may be learned from
any history of the period. Suffice it that the ge
neral and state governments not only urged and
established claims, but admitted a set of prohibi
tions on themselves.
In all this there appears no fatal compromise.
But there were some which made the wisest men
of the time tremble for the stability of their noble
work. There seems peril enough in the liability
to the occurrence of new questions, which could
not be foreseen, and for which an opening might,
or might not, happen to be left. When, in ad
dition to such, there were some questions left to
be settled by a future government, from the in
ability of the statesmen of 1787 to agree upon
* The Federalist, vol.i. p. 277.
40 THE GENERAL GOVERNMENT.
them, these statesmen might well be uneasy about
the stability of their work. Of the first order of
questions is that which is now debated with great
animosity, whether Congress has power to abolish
slavery in the District of Columbia : a disputed
point of construction, on which it seems to me that
no plain person can be blamed for not anticipating
any difference of opinion. Of the second class is
that great question, or nest of questions, respecting
Reserved Rights. It was agreed that all unforeseen
questions which might arise with regard to the re
spective powers of the general and state govern
ments, should be settled by the state governments ;
but then, there was an indefinite limitation intro
duced in the clause, that the general government
should have all powers necessary for the prosecu
tion of such and such purposes. This vague clause
has been the occasion of the Union being shaken to
its centre ; and it may be thus shaken again, before
the questions arising out of it are all settled.
Even these, being open questions, are less
formidable than the compromise of the true repub
lican principle which is apparent in some pro
visions of the constitution, and in some of the most
important institutions of the country. The north
ern States, which had abolished, on principle, a far
milder slavery than that of the cotton and sugar-
growing south, agreed to admit slavery in the
south as a basis for direct taxation, and for repre
sentation. They did worse. They agreed to act
in behalf of their southern fellow-citizens in the
capture and restitution of runaway slaves, and in
the defence of masters against rebellious slaves. ,.
What bitter sorrows of conscience and of feeling
this compromise has cost their children, it is im
possible fully to describe. Of course, the law,
being against conscience, i. e. the law of man
coming into collision with the law of God, is con-
THE GENERAL GOVEI^MENT. 41
stantly broken; and causes of dissension hence
arise. I know that slavery is only recognised by the
constitution as a matter of fact ; and that it is only
twice mentioned ; in connexion with representation,
and with the restitution to their masters of " per
sons held to labour escaping into another State :"
but the fact remains that a man who abhors sla
very is compellable by the law which his fathers
made, to deliver up to the owner a slave whose act
of absconding he approves. It is impossible to
estimate the evils which have proceeded from, and
which will yet arise out of this guilty but " neces
sary" compromise.
.- There was difficulty in bringing the greater and
smaller States into union. The smaller States
could not agree to such an unequal representation
as should render them liable to be swallowed up by
the larger ; while the Jarger could not consent to
be reduced to an equality with the smaller. The
Senate .was established to afford an equal state
representation |TwnTI(ftEe HouseToF Representa~
tivtjy "aflbrdy ^^ a^irTepfe~senfaIi5n of the Batiou"iju-
fhTr~aggregate; ^cbrtJiiig "to li umbers* QBut the
principle of the general government is, that it
governs the entire people as one nation, and not as
a league of States. ^There ought, in consistency
with this, to be no state representation at all ; and
the Senate is an anomaly. An anomalous insti
tution cannot be very long-lived. A second cham
ber, on a more consistent principle, will probably
be established in its place, to fulfil its functions as
a Court^pfReview, and as a check uponthe preci
pitation of the^oth15r "fiou^e, and, TiQeeilSeJ optm -
the^errcroacliments" of the executive. ~ There is yet
more of compromise involved in this "institution of
the Senate ; as might be expected, since there is
no end of compromise when principle is once de
parted from ; yet there are statesmen who defend
THE GENERAL GOVERNMENT.
it on other grounds than that its establishment
was necessary to the foundation of any federal go
vernment at all. One observed to me, " Some
things look well in theory, and fail in practice.
This may not be justifiable in theory; but it
works well." If this last sentence be true, the
well-working of the Senate is only a temporary
affair; an accident. Its radical change becomes a
question of time merely ; and the recent agitation
of the question of Instructions seems to indicate
that the time is not very far distant.
The appointment of the judges for life is another
departure from the .absojute .republican principle.
There isno aclual control over them. Theirs is a
virtually irresponsible office. Much can be and is
said in defence of this arrangement ; and whatever
. is said, is most powerfully enforced by the weight
of character possessed by the judiciary, up to this
day. But all this does not alter the fact that irre^-
p^n^ible_offices_are an inconsistency in a republic.
WitK~regard to aTTthls" compromise, ncTplea of etf-
pediency can alter the fact that, while the House of
Representatives is mainly republican, the Senate is
only partially so, being anomalous in its character,
and its members not being elected immediately by
the people ; and that the judiciary is not republican
at all, since the judges are independent of the
nation, from the time of their appointment.
I was told, on high authority, that the assent of
the first nine States to the constitution, in 1788,
was obtained by means not absolutely fair. What
devices were used to procure an apparent majority,
I was not informed ; but it is generally supposed
that if there had been no legislatures active on the
occasion, if it had been put to the vote throughout
the nation, the ratification would not have taken
place when it did Chief Justice Marshall gives
testimony to this effect in his Life of Washington..
<r-
THE GENERAL GOVERNMENT, 43
" So small, in many instances, was the majority in
favour of the constitution, as to afford strong
ground for the opinion that, had the influence of
character been removed, the intrinsic merits of the
instrument would not have secured its adoption.
Indeed, it is scarcely to be doubted that, in some
of the adopting States, a majority of the people
were in opposition."
That a constitution, so framed, and so carried,
should have worked as well as it has done, seems
to point out two very encouraging things ; that we
may, without rashness, speak of it as Washington
did, when he said, " I was convinced it approached
nearer to perfection than any government hitherto
instituted among men ;" and that the world may
quietly and hopefully await the further proceed
ings of the American people, in their advances to
wards an uncompromising democracy. There will
be changes, but not therefore convulsion. There
will be the change which Jefferson foresaw, and
provided for without dread. " Still," says he, so
lately as June, 1824, " we consider our constitu
tions not otherwise .changeable than by the au
thority of the people, on a special election of re
presentatives for that very purpose : they are,
until then, the lex legum. But can they be made
unchangeable ? Can one generation bind another,
and all others, in succession for ever ? I think
not. The Creator has made the earth for the
living, not the dead."" A generation may bind
itself as long as its majority continues in life ; when
that has disappeared, another majority is in place,
holds all the rights and powers their predecessors
once held, and may change their laws and institu
tions to suit themselves. Nothing then is un
changeable but the inherent and inalienable rights
of man."*
* Correspondence, yol. iv. p. 396.
.&
THE GENERAL GOVERNMENT.
Nothing can be more striking to a stranger than
the experience gained, after some residence in the
United States, of the ultimate ascendency of the
will of the majprity^^TTigf the right in defiance
of all appearances to the contrary. The review of
what I witnessed of this kind, in the course of two
years, with regard to the conduct of Congress
alone, surprises and cheers me. It is true that I
see several wrongs unredressed; several wounds
inflicted on the people s liberties yet unhealed ; but
these are cases in which the people do not yet un
derstand what has been done; or have not yet
roused themselves to show that they do.
In the Senate, the people s right of petition is
invaded. Last session, it was ordained that all
petitions and memorials relating to a particular
Subject slavery ^n_tb,fi^J}J B triet of Columbia
should be laid on the table unread, and never re
curred to. OT course, the people will not long
submit to this. What has been already achieved
in Congress on this topic is a security that the rest
will follow. ^tVhen I entered the United States,