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Constitutional history of the United States from their Declaration of Independence to the close of the Civil War online

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Did Mr. Lincoln cease to be President of the United States soon
after his first inauguration, when a number of the states in their
corporate political characters had " seceded " from the Union ?
By no means. He had been chosen president by a majority of
all the electoral votes, representing a majority of the people of
all the states ; and he continued to be the representative of that
majority of the nation, to whatever quarter of the universe some
of the state sovereignties had strayed away.

I am by no means disposed to deny that the duty of counting
the electoral votes is a very delicate one ; but I can see far greater
dangers in refusing to inquire, in cases that call for inquiry, into
the right of those who claim to be electors to act as such, than
I can see in making such inquiry. The purpose of the Constitu-
tion is, that " counting " the electoral votes implies the ascertain-
ment of what are true and lawful electoral votes ; and while, in
all ordinary cases, there may be no occasion to look beyond the
certificates and their accompanying attestation, there may be
cases in which the power to do so ought to be held to be implied
in the nature and objects of the proceeding by which the primary
election of a president is to be determined. It is no answer to
this view to say that the Constitution has not in express terms
granted such a power to the two houses. Many powers of vast
extent and importance have been deduced for the general gov-
ernment or some of its departments by the rules of implication
applied to provisions of the Constitution no more specific and
descriptive than this provision which declares that the electoral
votes " shall then be counted." If power to do a particular thing
is necessary to the accomplishment of some object or the dis-
charge of some duty which is provided for bv the Constitution
in general terms, Congress is amply authorized by the text of the
Constitution to provide by law for the doing of that thing. That
it is obviously necessary to make inquiry in some cases into the
genuineness and truth of papers which purport, or are certified
to be, electoral certificates, in order that electoral votes may not
be cast by unauthorized or disqualified persons, will be conceded



THE NATURE OF THE CONSTITUTION. 103

by all. The objection is, that however necessary such a power
may be, it is not provided for ; and that this must be regarded
as a weak point in the electoral system, however much it may
be lamented. I deny the premises and the conclusion. I deny
the weak spot. I maintain that the authority granted in general
terms to "count" the electoral "votes" embraces, by a proper
application of the rule of implied powers, authority to ascertain
what electoral votes have been lawfully given ; and that there is
no state right or state sovereignty involved in the matter that
ougbt to prevent an application of the doctrine of implied powers,
by the same deduction that has been again and again employed,
without complaint, in determining some of the most important
powers and functions of the government or its various depart-
ments. If I am right in respect to the power and duty of the
two houses in counting the electoral votes, it is of course a power
and duty that cannot be delegated to any other body, in any
form whatever.

It is impossible to treat this subject exhaustively within the
space here given to it. I have aimed only to suggest the nature
of the question, and to describe what I believe to be the consti-
tutional purposes of the electoral s^^stem, its merits, and its adap-
tation to the great objects for which it was designed. It is to
be hoped we shall not be driven to surrender it by anything that
has yet happened to it.

Above all, let us not surrender it to the insidious operation of
a doctrine that renders it possible for a state legislature, after it
has determined that the electors shall be appointed by the quali-
fied voters of the state, to authorize any body of the state return-
ins: officers to disfranchise some of those voters, to throw out
votes here and substitute votes there, thus changing and falsify-
ing the result of the people's ballots, which have been duly re-
turned by their local officers. Such a state law, applied to the
appointment of presidential electors, is no more within the con-
stitutional powers of a state legislature than it would be to reject
the whole popular vote after it had been taken, and to proceed
to give the appointment of the electors to a packed committee.

If the people of a state are so besotted, or so dominated by
an oligarchy of perpetual office-holders, as to submit to such a
method of dealing with their state offices, the people of the



104 CONSTITUTIONAL HISTORY.

United States have an interest and a right to say that they shall
not apply it to the appointment of presidential electors. It is not
within the grant of power which the Constitution made to the
state legislatures when it authorized them to determine the
" manner" in which the electors are to be appointed. That word
" manner " comprehends nothing but a choice of the electors by
the votes of the people, honestly ascertained and declared as they
were actually given, or a choice by the legislature, ascertained
and declared with equal honesty as it was actually made.

Again, let us never surrender the electoral system to the in-
sidious operation of a doctrine that renders it not only practica-
ble, but easy, to surround the returning officers of a state with in-
fluences that may lead them to declare that one body of electors
was chosen by the people, when another body of electors was, in
fact, chosen. If it is said that the two houses of Congress can-
not inquire into the fact, and that, however deplorable this may
be, it is a weak spot in our political sj'stem, a door is opened to
every kind of fraud, to every imaginable species of corrupt influ-
ence. Of what consequence is it to a citizen of a state and of
the United States whether the returning officers of his state, or
any other, are bribed with money or with political promises, or
whether they are governed by their convictions that it will be
better for the country that one party should retain than that
another should acquire the executive office ? Some of the greatest
crimes in history have been committed under the conviction that
the public good required their commission. "Whether the influ-
ence or the motive be one thing or another, when the returning
officers of a state make a false return of the popular votes for
presidential electors, and it is held that the truth cannot under any
circumstances be inquired into, it is not that a weak spot is re-
vealed in our electoral system, but the whole system is surren-
dered to the ever-rapacious, the ever-insatiable, the ever-unscru-
pulous, the ever - dangerous spirit of party, which corrupts and
destroys the liberties of the republic in its most sacred and its
best guarded institutions. Vice and villany shelter themselves
under the segis of the Constitution, and coolly tell us that its
framers must bear the blame. The virtue, the sense, the reason
of an indignant people make answer, " Your doctrine is false, your
plea is overruled ; " the Constitution gives no such immunity to



THE NATURE OP THE CONSTITUTION. 105

crime — it withholds no power of inquiry that is necessary to de-
termine when a certificate of presidential electors, or any state
document that supports it, asserts what is not true.

The exercise of the elective franchise iu voting for a President
of the United States is the most lofty, the most far-reaching in its
consequences, of all the political privileges that have been be-
stowed upon the individual American citizen. If the reader car-
ries his thoughts back for a moment to the enumeration which I
made of the powers of that great office, and then reflects that, in
voting to fill it, he acts as an integral part of the nation, he will
see that he exercises a function that is more elevated, more di-
rect and extensive in its influence upon public affairs, than was
ever exercised in any other republic, ancient or modern ; for in no
republic, in ancient or modern times, has there ever been an elec-
tive chief-magistracy, to be filled by the free and untrammelled
suffrage of a nation, in which the powers and duties were so di-
rectly held of and for the people, under a written constitution, as
they are in this office of President of the United States. He is
therefore to guard this great privilege as he would guard his life
or his honor. He should surrender it to no political doctrines
that will tend in any degree to impair it, lest the time may come
when some power will say to him, as he approaches the polls,
" Do you see those bayonets ? They say to you that you may
vote, but you must vote in one way !"•

One of the strongest and the proudest republics that ever ex-
isted, that of ancient Rome — in which the free citizen held an
elective franchise in the appointment of the chief-magistrate not
unlike that Avhich the American voter holds in the choice of a
President of the United States — slid into an empire. For several
centuries the forms of the old republican constitution were kept
up, while their political significance and power were utterly lost.
The emperor was annually chosen consul, as of old ; but he was
an absolute dictator, holding his office of emperor by military
power, and appointing his successor so long as the military chiefs
and the soldiers would support his selected heir. All the pop-
ular elections that were ever held in Eome under the Csesars and
their successors were held under the dictation of military power.

And have we not seen the French republic of our own times
slide into an empire by a similar process? When Louis JSTapo-



106 CONSTITUTIONAL HISTORY.

leon, president of the republic, was transformed into Napoleon
III., emperor, how was it done ? First, there was a coup-d 'etat,
which suppressed the whole machinery of the republic, and left its
former president and the army which obeyed him masters of the
nation. Then a constitution, establishing the empire and creating
Louis Napoleon emperor, was offered to the votes of the people.
But all the world knows that while the people were told they
might vote, the power which had framed and dictated the consti-
tution could and did dictate its adoption. The process was sim-
ple, and it was easy, because there was a physical force adequate
to its accomplishment. To the power thus established the French
nation submitted, until the corruptions of the empire had emascu-
lated its vigor, and a foreign war destroyed what was left of it.
Freed from an incubus of their own creation, the French nation
proceeded once more to construct a republic, the stability and du-
ration of which have become more and more probable, in propor-
tion as honesty and truth and fidelity to the principles of liberty
have been able to predominate over chicane, intrigue, corruption,
and physical force.

A practice, however, which has grown up within the past sixty
years, has entirely frustrated the original design of the electoral
system of choosing a president. This has been the consequence of
the activity, the powerful organization and discipline of the politi-
cal parties, whose nominating "conventions " ' have imposed on the
electoral colleges an obligation that has come to have the force of
law, without its sanctions or safeguards. All the political parties
that have existed in this country for more than half a century are
alike responsible for this departure from the Constitution, for they
have all used the same methods. A description of these methods
and their effect will be useful as a measure of the extent to which
this abuse of the electoral system has been carried.



1 See Appendix, "The Nominating Convention." — J. C. C.



CHAPTER IV.

The Constitution Inaugurated. — Vindication of its Feamers
against the charge of inconsistency. — classification of
the States according to Population. — The Government
partly Federal and partly National. — Basis of Repre-
sentation in the Two Houses of Congress.

Having, in the preceding volume, treated of the formation of
the Constitution and its ratification by the eleven states, I now
come to the period of its inauguration and establishment. The
peaceful substitution of one government for another, through its
voluntary acceptance by the people who were to be affected by
the change, was in that age an unprecedented spectacle. Nearly
all governments that the world had then known had been the re-
sult of force, or fraud, or accident, or of a combination of these
three causes. • Even in those in which there had existed some de-
gree of liberty and regard for the happiness and welfare of the
subject, the original title of the governing power had been more
or less founded in conquest, in successful intrigue, or in occur-
rences that had given predominance to a race or a class. Hence
it was that the fundamental idea of nearly all the governments
of modern times was based upon the principle that the govern-
ment itself is the source of all power, and that whatever of liberty
it allows to its subjects is a concession. Even in the English sys-
tem, the supreme power, the absolute and uncontrollable author-
ity, which in all states resides somewhere, and from which there
is no appeal, has always been held to be lodged in the Parliament.
The legislative authority, which comprehends the two houses and
the crown, is the supreme power ; all individual rights are sub-
ject to its control ; and the idea of a restraint laid upon the leg-
islative power itself, and proceeding from the people, is unknown.
All that is contained in Magna Charta, or in any of the monu-
mental acts of English liberty ; all that has been brought about



108 CONSTITUTIONAL HISTORY.

by the struggle between different orders of the state, or between
those orders and the crown, has been obtained by way of grant
or concession. The idea that the source of all power is the peo-
ple, that the supreme authority is in them, and that the govern-
ment grants nothing to them and that it derives all its power
from them, is not the principle of the British political system.
Whatever has come in modern times to be the force which public
opinion and the national will exert througli the House of Com-
mons, whatever are now the acknowledged rights of individuals,
it still remains true that everything is held at the supreme pleas-
ure of Parliament, and that the government itself can be changed
only by the legislative authority or by revolution.

In most of the other countries of Europe, at the period when
the American constitutions were made, the fundamental principle
that the actual government is a power in possession of the right
to govern, and that it grants or withholds everything at its pleas-
ure, lay at the foundation of the political system. Nowhere, ex-
cepting in America, had it been discovered that a government
could be founded on the principle that the people themselves are
the source of all power; that they can create such government as
they may see fit to establish ; that they may lay it under any re-
straint that they deem necessary to impose upon- it; and that
they may, by public compacts, limit their own power in respect to
the modes in which the government shall be peaceably changed.'

But before proceeding to develop the special hazards which
the Constitution had to encounter at the inauguration of the new
government, it may be well to explain how it happened that



1 There are mauy striking proofs of the contemporaneous recognition in Eu-
rope of the discoveries and advances in the science of government which were
then making in America. Among them I have seen none more remarkable than
what is contained in John Payne's Universal Geography, an English work in
four volumes, published at the close of the last century. The fourth volume, re-
lating to America, was republished in New York in 1799, by John Law, "at the
Shakespeare's Head, No. 332 Water Street." Payne's analysis of the distinction
between our Articles of Confederation and our Constitution, his description of the
materials with which the framers of the latter had to work, his comprehension of
their difficulties and the modes in which they met them, and his perception of the
principle that throughout the whole structure "the citizens of the United States
say 'we reserve the right to do what we please,'" are all acute, accurate, compre-
hensive, and instructive.



"SLAVERY COMPROMISES." 109

what has subsequently been regarded as an inconsistency was
allowed to occur. It has already been claimed that our ancestors
established the principle that the people are the source of all
political power, that the inherent civil rights of all men are
equal, and that nothing of individual right or political power is
derived from the government. How, then, did it occur that the
right to participate in the exercise of political power and the
rights of personal liberty were, in the establishment of the Con-
stitution of the United States, confined to a single race of men ?
Or, to speak more accurately, how was it that men of one race
were, in fact, excluded from the enjoyment of these rights ?
Does not the political and social history of this country, as it
appears in its early constitutional stage, exhibit some inconsist-
ency?

So far as this question has not already been answered in the
foregoing description of the circumstances which rendered nec-
essary the so-called "slavery compromises" of the Constitution,
this is a convenient place to exhibit more fully the true views
which, I think, should be taken of this seeming inconsistency be-
tween the theory and the practice of our ancestors. They stand
removed from us by the intervention of three generations, and
by a great chasm which has opened between their political sys-
tem and that under which we are now living, in consequence of
the removal of all distinction between races in respect to the en-
joyment of civil rights. Across that chasm we can recognize the
facts which they were obliged to recognize and to act upon, and
can determine, without prejudice, what measures of inconsistency
ought to be imputed to them. By this inquiry we can also learn
what adaptability there was in the political system which they
left to us, to bring about a fuller accomplishment of their pro-
fessed principles of human rights.

The republican character of the political system which existed
in this country from the Eevolution down to the close of the
late civil war comprehended two great principles, each of which
was not so much a matter of theory as it was a practical result
of antecedent facts. The war of the Eevolution was undertaken
and fought to sever the connection of the colonies with the
crown of England, and this involved the rejection here of the
hereditary principle in government. When the thirteen colonies



110 CONSTITUTIONAL HISTORY.

had achieved their independence and had become sovereign and
self-governing states, free to choose their own form of govern-
ment, their choice was yet restricted by a fact ; which was that
there existed here no means by which the hereditary principle
could be applied in any part of a system of government.

Our ancestors could not look for a ruler in any of the reign-
ing families of Europe without compromising the independence
which it had cost them so much to gain ; and they could not find
a monarch at home for the simple reason, among a great many
others, that there was no man and no family in the nation in
whom they could find even an elective king or establish a dy-
nasty.

The only man who ever had supreme power within his reach
in this country was Washington, and he w r as a determined foe
to every form of monarchy. There was, as we have seen, a pe-
riod in the darkest year of the war when it was necessary for
him to exercise the powers of a dictator, and probably he could
have held such powers for a considerable period. How sparingly
he exercised the extraordinary powers which were confered upon
him by the Congress in 1776, and how he resisted every suggestion
of their prolongation beyond the immediate necessity of a most
critical juncture, is well known. Believing that a republican
government was the destiny of this country, he exerted all his
vast influence to the exclusion of everything that might lead to a
resort to the hereditary principle. Excepting in the asserted
right of the British crown as the supreme executive authority
over the colonies, the hereditary principle of government was
practically never in force in this country. Even in our colonial
condition there never were any persons among us who had an
acknowledged hereditary right to public office; so that, when
the people of the states came to shape their own political institu-
tions, there existed no means for the practical adoption of the
principle that public office of any kind can belong to individuals
as a personal right. The political and social equality which pre-
vailed among the people, and the fundamental principle asserted
by the Declaration of Independence which made them the source
of all political power, were quite consistent with a state of man-
ners which exhibited a good deal of deference to official station.
But while the distinctions in society, to which wealth, custom,



POLITICAL EQUALITY OF ALL MEN. Ill

and official position everywhere lead, were as marked in this
county as they were anywhere, our ancestors had a genuine sim-
plicity of taste in regard to the outward show and manifestation
of their political institutions, and this simplicity had much to
do with the nature of the institutions which they established.
Along with this the necessity of economy in public expenditures
operated in the same direction. We were by no means a wealthy
people in the era which witnessed the formation of our political
system.

At the same time there was a limitation of the principle of
the political equality of all men, which, like the principle itself,
grew out of a practical necessity. Our political institutions were
originally founded by and for a single race of men — the white
inhabitants of the United States. They were not intended to
embrace, and could not embrace, in their direct benefits and priv-
ileges, any other race ; and it is no disparagement to the moral
character or the political wisdom of our ancestors that the scope
of their institutions was so limited. They did unquestionably
assert in the Declaration of Independence that all men are cre-
ated free and equal, and are endowed by their Creator with cer-
tain inalienable rights, among which are life, liberty, and the
pursuit of happiness, and that governments are instituted among
men to secure these rights. But it was not a mental reservation
that confined the meaning of these solemn assertions to white
men.

The framers of the Declaration asserted a broad, general
truth which all of them, slaveholders and non-slaveholders alike,
knew to be applicable by a law of nature to black men as well
as white. But they also knew that when the independence of
the United States should have been accomplished, it would be
practicably impossible to frame institutions of national govern-
ment that would include, in their direct benefits, a race of men
held in some of the states as abject slaves and as property, under
a system of local law recognized although not practised by all
civilized nations. The principle of that law, that man can hold
property in man, although beginning to be questioned, was by
no means overthrown. The great and stubborn fact of African
slavery was beyond the reach of the men who made the Consti-
tution of the United States. They could make no new union



112 CONSTITUTIONAL HISTORY.

between the thirteen states without recognizing the admitted
right of the slaveholding states to maintain a system of local
law which recognized slaves as a form of property ; and conse-
quently they could create in a new government for that union
no republicanism or equality of personal rights for any other
race than the white inhabitants of the several states.

It was their mission to establish out of the materials within
their reach a republican system of government for a nation in
which the political equality of men could be practically worked
by and for the members of one race, leaving the principle it-
self, in its universal application, to future ages and to an ad-
vanced condition of society, when the institutions created for
the one race had stood the test of time.



Online LibraryGeorge Ticknor CurtisConstitutional history of the United States from their Declaration of Independence to the close of the Civil War → online text (page 12 of 88)