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THE

COxNSTITUTION

OP

THE UNITED STATES

COMPARED WITH OUR OWE






By the same A uthor,

Notes on Public Subjects, made during a Tour in the
United States and in Canada. 1852, \0s. 6d.

The Political Experience of the Ancients, in its Bear-
ing UPON Modern Times, 1852, 2s. 6d.

" A valuable little book on the pliilosopliy of Govern-
ment." — /Spectator.



THE



CONSTITUTION



THE UNITED STATES



COMPAEED WITH OUR OWN.



:^>\}J-lLii\7>




HUGH SEYMOUR TREMENHEERE.



• ' ' 1 > I • »* , J »



. .", . t V'y^^iA Sf^quJU^r jastantior Ancus,
Nunc quo>mp jan^' xii'mium r^ud'^ns popularibus auris."

YlRGIL.



LONDON:

JOHN MURRAY, ALBEMARLE STREET.

1854.

[The Author reserves to himself the right of authorisinfj c
* Translation of this Work.^



LONDON :
PRINTED BY WOODFALL AND KINDER,

ANGEL COURT, SKINNER STREET



, c cc c - o
c ccc c t



CON T E N T S.



Page
INTRODUCTION ix

CHAPTER I.

Different Principles op Government in the diffe-
rent Colonies while they remained under British
Rule . . . 1

., , CP^PTERII.

Progress TO-vf^ARDS T^i>i:pEi!^.Di3NCE ; ',' ; •' . . . .22

•''; ;'j}^APpR'III.
The Revolutionary . GoyETJNu^EN.^? ;, the Confederation 31

"*"""' "chapter- IV.
The Constitution 37

CHAPTER V.
The Preamble 49

CHAPTER VI.
Necessity op separating the Legislative, Executive,
AND Judicial Powers 58



vi CONTENTS.

Page
CHAPTER VII.

The Senate 66

CHAPTER VIII.
The House of Representatives 81

CHAPTER IX.
Elections 106

CHAPTER X.
Payment of Members 137

CHAPTER XL
The President's Negative ...... 168

CHAPTER XII.
The President's Message 177



CHAPTER XIII.
Powers of Congress





.•CHAI^^Tto^ XI^. " -'''


The Executive




The Judiciary


cHAPfEER\xy; .:n I \



183



198



248



CHAPTER XVI.
Concluding Remarks 286



CONTENTS. Vll



NOTES,

Page
Note I. — The over-predominance of any one political ele-
ment in a Constitution, destructive of freedom . 300
Note II. — Extract of Letter from Mr. Jay to Washington,
on the Balance of Power in the new Government.
— President John Adams on the same subject . . 303

Note III.— The Tyranny of the Majority . . . .307
Note IV. — Growing habit of External Aggression in the^
Democracy of the United States . . . .312

Note V. — The independence of the Judges destroyed in

upwards of five-sixths of the States, and threatened

in the rest ; consequent Danger to Freedom, and to

the security of Life and Property . . . .314

Note VI. — <>n thesa'm^ Sul'yQct? '„.:,». . • . 316

Note VII. — On,. the same Subject. — Abuse of the power

of Pardoni'ig in ;tfi'e„^nite:d States .... 318

Note VIII.-'-Op. ,tfc,e- *^raflsuai§cioa of Property in the

United Stft4f<s\ 1^ ; '\ /I'vl'^. V . . .■ . .321

Note IX. — On the same Subject 327

Note X.— On the Theory of the " Rights of Man" as the
foundation of political power. — On the true founda-
tion of Government 331

Note XI. — On the Slavery Question .... 337

Note XII. — Sentiments of Washington, President John

Adams, and others, on the Constitution . . . 344



Vlll



CONTENTS.



Page
Note XIII. — On the System of Elementary Education in

the United States 349

Note XIV. — Additions made to the Estimates for the year

1852-3, by the Democratic Majority of Congress . 357
Note XV.— List of Presidents of the United States . 360
Note XVL— List of States.— Population . . . .361



APPENDIX.



An Act to prevent Frauds upon the Treasury of the

United States 363



THE CONSTITUTION OF THE UNITED STATES . 368



INTRODUCTION.



The state of our representation being probably about
to be considered in the ensuing Session of Parliament,
there will be a natural disposition in many minds to take
a survey of some of the other systems of representative
government which, equally wdth our own, have for
their object the establishment of a rational freedom.

Such representative governments are indeed but few.
The hopes formed during upwards of thirty years of
peace were dissipated (it is to be hoped only for a time)
by the events of 1848 ; and the civilised world has been
compelled to mourn over the failure of nearly all the
attempts then made to add to the number of free go-
vernments, or to widen the foundations of liberty in
those that did exist.

Into the much-disputed question of the causes of
those failures, it is not my present purpose to enter.
Suffice it to say, that whoever has made them the
subject of impartial study, must have found those
latter years of continental history fertile in warnings as
to the peril of delay when the season for salutary-
reform is fully come, and abounding in examples of
the greater fault, of ruining all the hopes of temperate
and reasonable ameliorations, by presumption, precipi-
tancy, or personal ambition.



X INTRODUCTION.

The instances on the continent of Europe in which
the national liberties have for the first time emerged
out of the struggles of the last six years, or have, been
extended and fortified by them, are but few; and we
could scarcely expect to derive from those cases, or
from the other constitutional governments of the Conti-
nent, instruction upon the particular points which are
soon about to occupy us here. The course of those
changes on the Continent has indeed been watched
attentively in this country, and with much public sym-
pathy; and it has been satisfactory to observe that
where success has been greatest in the new career of
freedom, as in Sardinia, it has arisen from the fact that
her social arrangements have enabled her to adopt
political institutions most nearly resembling our own.
Belgium and Holland have derived strength and con-
fidence from the danger which at one time threatened
them ; and their free governments have been found to
rest on a secure basis of patriotism and public spirit.
Denmark, still occupied in adjusting her constitutional
powers, has maintained the integrity of her territory,
and has won for herself a high place in the estimation
of Europe by her loyal, brave, and constitutional stand
against aggression.* Norway, depending on her strong

* The battle of Idsted, in which, in 1851, the small Danish
army defeated and destroyed the forces of the Frankfort Par-
liament, "recruited by many thousands of volunteers from
the Prussian Army, and led by many of the most distinguished
military men in Prussia, lent by the Prussian Government for
the occasion," is said by military authorities to have been the
most scientific battle fought since the peace of 1815. (Laing's
Denmark and the Duchies. 1852.)



INTRODUCTION. XI

national feeling for the preserv^ation of institutions
which suit her circumstances, has remained unassailed.
Sweden has not yet entered upon the long-projected
amendments of her cumbrous political system. Prussia,
together with the smaller German States, are still in
the leading-strings of Bureaucracy, and have yet
much to do towards attaining a well-regulated liberty,
worthy of the great German people. Spain and
Portugal have made no very apparent progress to-
wards infusing the true spirit of freedom into the forms
of free government, which have hitherto in their hands
been little more than instruments of arbitrary power and
bad faith. Over the rest of Europe, from the Pyre-
nees to the Carpathians, the experience that had been
gathered, and the hopes that had been formed of con-
stitutional hberty, have for the time been overwhelmed
and scattered, and men have now to wait the growth of
maturer councils, or of that solidity and strength of
moral character, and that temper and self-restraint in
political action, without which the framework of con-
stitutional government serves but the purposes of cor-
ruption or oppression.

If from none of the above we are likely to derive
political lessons of any great value to ourselves at this
particular moment, when we are about again to pass in
review our own political arrangements with the expecta-
tion of amending some few of them, we naturally turn
next to the great community on the other side of the
Atlantic.

We are led to ask whether the new form of free
government '^' abhshed in the United States in 1789,



Xii INTRODUCTION.

offers any peculiarities which might be usefully adopted
here, or whether experience has there brought to light
any defects in theory or in practice, which may be re-
garded as warnings for ourselves.

Desirable as such an inquiry may be at the present
moment, it is not a very easy matter to pursue it. It
may indeed be not difficult for any one to possess
himself of a copy of the Constitution of the United
States — a document occupying a few pages only — or
to refer to it in any work of modern history. But a
perusal of the document itself will advance him very
little on his way towards understanding the objects at
which it aimed, the reasons on which it was founded,
the contrasts and analogies it presents to our own and
to all previous forms of free government, and the
lessons to be learnt from the sixty-five years of ex-
perience to which it has now been subjected.

To attain that knowledge, even any intelligent
citizen of the United States must have recourse
to voluminous and learned works, which require time
and study to master. The principal of these are
the " Commentaries" of Mr. Justice Story, and those of
Mr. Justice (aftei-wards Chancellor) Kent, the first in
three, the second in four thick octavo volumes. Next
in value and importance, are the papers forming the
collection of the "Federahst," written by some of the
leading statesmen of the time of the separation from
this country. Equal to these is the very learned and
admirable "Defence of the American Constitutions"
against the attack of M. Turgot, by Mr. John Adams,
afterwards the second President of the Eepublic.



INTRODUCTION. XUl

(London, New Edition, 1794, 3 vols.) Then follow
the numerous volumes of reports of the decisions of the
Supreme Court of the United States ; also various other
hooks of legal authority, such as Tucker's edition of
"Blackstone's Commentaries;" and, lastly, the masterly
analysis hy M. de Tocqueville, of the social and poli-
tical condition of the people of that country.

I am not aware that any attempt has heen made to
place hefore the public in this country in an accessible
shape, the Constitution of the United States, set in the
light thrown upon it by some of the highest minds
which that country has produced ; illustrated by some
portions of the experience which time has brought
forth ; and contrasted with those principles and practices
which we cherish as the main supports of our system
of constitutional government.

It appears to me that there are public reasons why
this task should be undertaken at this period ; and at
the risk of executing it imperfectly, I venture to put
together the results of such reading and personal in-
quiry as, during some years past, I have from time to
time been able to bring to bear upon the subject.

I purpose following very nearly the arrangement of
Mr. Justice Story in his " Commentaries," and shall,
in the first place, state in as compendious a manner as
is consistent with clearness, the substance of that
learned judge's remarks and opinions, upon each of the
most important articles of the Constitution.

To this I shall add, where desirable, the observations
of the authors of the "Federahst," and also those of
Mr. Justice Kent, under the same heads, together with



XIV INTRODUCTION^.

extracts from any other writers whose facts and opinions
may seem worthy of consideration in connection with
those of the above principal authorities.

And, finally, I shall take occasion to point out the
essential differences between the system of government
in the United States and our own, and draw such con-
clusions from those points of difference as the facts
may justify, and as may seem important to be kept in
mind at a time when we are about to touch the frame-
work of our own system with a view to its further
amendment.

It is proper to say a word or two more as to the high
character of the American works which I am about to
follow.

The '^ Commentaries " of Professor Story stand at
the head of all the writings on the subject of the
American Constitution, and, in conjunction with his
other works, have acquired for their learned author a
judicial authority of the first order throughout Europe.
He was appointed in 1811 one of the Justices of the
Supreme Court of the United States. He also obtained
the "Dane" Professorship of Law in Harvard Univer-
sity, near Boston, and in that capacity published his
" Commentaries on the Constitution of the United
States," in the year 1833. The edition which I have
quoted from is the last, that of 1851. (Boston.)

These Commentaries occupy the same place in
literature as an exposition of the Constitution of the
United States, as is occupied by "Blackstone's Com-
mentaries upon the Constitution and Common Law of
England." They are conspicuous for their calm tone,



INTRODUCTION. XV

correct style, and measured language, no less than for
careful research and strictness of reasoning. Though
a faithful citizen of the United States, and a patriotic
admirer of the main principles of her Constitution, he
is too hold to disguise his disapproval of what he
deems imperfections, too honest to conceal his fears,
and too sincere a lover of truth to shrink from or
pervert it.

Next in authority are the "Commentaries" of Mr.
Justice Kent, Judge of the Supreme Court of New
York, and Professor of Law at Columbia College in
the same State. This voluminous and learned work is
chiefly occupied with comments on the common law ;
but the considerable portion devoted to the Constitu-
tion of the United States is not less characterised by
a spirit of fairness and truthfulness than the w^ork of
Mr. Justice Story. It is, under some heads, more
copious, and abounds in valuable notes bringing down
the experience of the working of the Constitution to
the year 1844.*

But the sfreat sources of constitutional doctrine
from w^hich these and other wTiters have alike " drawn
by far the greatest part of their most valuable
materials," are "The Federalist," t an "incomparable
commentary of three of the greatest statesmen of their
age" (Mr. Madison, Mr. Hamilton, and Mr. Jay) ; and
also the highly-esteemed judgments of Chief Justice
Marshall upon constitutional law. " The former have
discussed the structure and organisation of the national

* Ne^Y York. 1844. t New York. 180r.



Xvi INTRODUCTION.

government, in all its departments, with admirable
fulness and force. The latter has expounded the
application and limits of its powers and functions
with unrivalled profoundness and felicity." * To these
are to be added the Reports of Dallas, Crank, and
Wheaton, of the decisions of the Supreme Court of
the United States ; other collections of judicial reports,
and the statutes of the various States; Eawle on the
Constitution; and the journals of Congress. I have
found in the British Museum all of the above which I
had not at hand.

Of the works of M. de Tocqueville,t it is unneces-
sary to speak. Their accuracy and impartiality are as
universally acknowledged as the high powers of obser-
vation and analysis which they display.

I shall have occasion to notice more recent facts
which have come before the public since the date of
these several writers, partly collected by myself in that
country in 1851, partly obtained since, chiefly from
public sources of information.

From the materials derived from the above sources,
I shall draw any inferences and institute any compari-
sons which may strike me as instructive, and desirable
to be borne in mind in this country.

January, 1854.



* Story. Preface, p. 1.

t De la Democratie en Amerique, published in 1835, Trans-
lated by Henry Reeve, Esq. 2nd Edition, 1836. Second Part
of M. de Tocqueville's Work, Paris, 1840.



THE

CONSTITUTION



OF



THE UNITED STATES

COMPAEED WITH OUE OWN.



CHAPTER I,



DIFFERENT PRINCIPLES OF GOVERNMENT IN THE
DIFFERENT COLONIES WHILE THEY REMAINED
UNDER BRITISH RULE.

Political reasonings upon the state of a
country, and speculations as to its future
course, are too apt to be conducted without
sufficient reference to its previous history.
This appears to be frequently, and perhaps
not altoo^ether unnaturally, the case with re-
spect to the United States; for the present
vast proportions of that great community have,
in their rapid growth, shut out the view, and
very nearly extinguished the thought, of all



2 DIFFERENT PRINCIPLES OF GOVERNMENT [ch. i.

that lies in the ohscurity of the past beyond
them.

But neither the state of society in the United
States, nor the spirit of its Constitution, can be
thoroughly understood or properly appreciated
-^without a previous knowledge of the different
principles of government which prevailed in
the different States while they remained under
British rule.

I propose, therefore, in this introductory
chapter, to give a very summary sketch of the
constitutional arrangements that existed in the
American colonies before their separation from
the mother country.

The Governments of the original thirteen
States are described by Judge Blackstone in
his ** Commentaries," as Provincial, Proprie-
tary, and Charter Governments. But this
description, though correct in an historical
point of view, and interesting in reference to
the various steps and processes in the settle-
ment of that country, affords no key to those
causes, which, in the words of Mr. Justice
Story, " have impressed upon each colony



CH. I.] IN THE DIFFEEENT COLONIES. 3

peculiar habits, opinions, attachments, and
even prejudices.'"^

The existence of those different "habits,
opinions, and attachments,'' in different parts
of the Union, is very generally overlooked in
a superficial view of the state of things in that
country. That they exercised great influence
at the time of the separation from us, in deter-
mining the kind of government then adopted,
there can be no doubt. And they have not
ceased to act powerfully, in a social, as well
as a political point of view, up to the present
day.

Those differences are traceable to the dif-
ferent forms of government originally given to,
or adopted by, the different States ; and fur-
ther, to their adoption with greater or less
strictness, or their rejection, of the principle
of the English common law in regard to the
descent of property.

Ten out of the original thirteen States pos-
sessed, down to the time of the Revolution,
forms of government, all of which, with some

* Page 1.

B S



4 CONSTITUTION OF YIRGINIA. [ch. i.

varieties of detail, bore as strict a resemblance
to our own as was possible under the circum-
stances of a new country. They may all be
described as moderate constitutional govern-
ments. The governor was the king's repre-
sentative ; and the Crown also appointed a
council, which was to a certain extent an
upper house of legislature ; not invested, how-
ever, with independent legislative power, but
acting as a consultative body and in concur-
rence with the executive. On the other hand,
the principle of popular freedom was recog-
nised, in the authority given to the governor
" to convene a general assembly of representa-
tives of the freeholders and planters." The
provincial assembly thus constituted, had power
(in the words of the different charters) "to
make local laws and ordinances not repugnant
to the laws of England, but as near as may be
agreeable thereto, subject to the ratification or
disapproval of the Crown."

The States that possessed this form of go-
vernment were Virginia, Massachusetts (in-
cluding New Hampshire and Maine), Mary-



CH. I.] CONSTITUTION OF YIEGINIA. 5

land, New York, New Jersey, Pennsylvania,
Delaware, North Carolina, South Carolina,
and Georgia.

Of these, it is only necessary to advert in
any detail to the first two.

Virginia, *' the first permanent settlement
made in America under the auspices of Eng-
land," under the Charter of James I. to Sir
Thomas Gates and his associates, in the year
1606, possessed originally, in accordance with
the limited views of the age in those matters,
very few political rights. But in I6l9, a re-
presentative assembly was called together by
the governor; and in 1621, the council of the
company in England gave permanence to this
act, by an ordinance vesting the legislative
power, ''partly in the governor, who held the
place of the sovereign, partly in a council of
State named by the company, and partly in
an assembly composed of representatives freely
chosen by the people." No law was to be in
force " until ratified by a general court of the
company, and returned under its seal to the
colony." And the ordinance " further :



6 CONSTITUTION OF YIRGINIA. [ch. i.

quired the general assembly, and also the
council of State, to imitate and follow the
policy of the form of government, laws, cus-
toms, and manner of trial, and other adminis-
tration of justice used in the realm of England
as near as may be." Although this form of
government was shortly after overthrown by a
process of "quo warranto" (16^4), it was re-
established in nearly the same form by Charles
I. ; and the Revolution of 1688 found the
colony, ** if not in the practical possession of
liberty, at least with forms of government well
calculated silently to cherish its spirit." *

The course of public opinion in Virginia is
strongly marked by two circumstances in the
legislation of that colony — the supremacy of
the Church of England, and the strictness of
entails.

By one of the earliest Acts of the colonial
legislature, the Church of England was esta-
blished, '* and its doctrines and discipline were
strictly enforced." The clergy " were amply

nrovided for by glebes and tithes," and ** the
cL

^ * Story, § 49.



CH. l] constitution of MASSACHUSETTS. 7

performance of parochial duties peremptorily
required." " The first law allowing toleration
to Protestant dissenters was passed in the year
1699;" but, subject to this, "the Church of
England seems to have maintained an exclu-
sive supremacy down to the period of the
American Revolution."*

With regard to entails, an Act was passed
in the colony in 1705, to prevent their being
barred by the ordinary process of fine or re-
covery, and requiring " a special Act of the
legislature in each particular case." Though
subsequently modified so as to exclude small
estates under 200/. in value, the general law
remained in force to the period of the Re-
volution ; and, " in this respect, the zeal of
the colony to secure entails and perpetuate
inheritances in the same family outstripped
that of the parent country."*

Massachusetts obtained from William and
Mary, in the year 1691, the Charter, under
which its government was conducted down to
the time of the Revolution. The charter is

* §50.



8 - CONSTITUTION OF MASSACHUSETTS. [ch. i.

described by Story as containing a liberal grant
of authority to the province, and a reasonable
reservation of the royal prerogative.

The principle of popular freedom had already
taken deep root in Massachusetts, and in the
other New England colonies which were by
this charter incorporated with it. There are
few events in history more striking and event-
ful than the landing of the small band of
refugees from religious persecution — " the
Pilgrim Fathers," — on the bleak and forbid-
ding shores of Cape Cod, in the winter of
1620, and their first act, their drawing up and
signing their simple and voluntary compact of
government. By this instrument they ** cove-
nant and combine themselves together into a
civil body politic, for the better ordering, and
preservation, and furtherance," of the ends
they had in view, — namely, the founding of a
colony "for the glory of God, and the ad-
vancement of the Christian faith, and the
honour of their king and country." And
although they subsequently applied for and
obtained from the Plymouth Company in Eng-



CH. l] COI^STITUTIOX of MASSACHUSETTS. 9

land, such power as that company could give,
to confirm their legislation, yet they never
received any powers from the Crown itself,
but continued to exercise, under their original
compact, " the most plenary executive, legis-
lative, and judicial authority," until they w^ere
incorporated with the province of Massachu-
setts by the charter above mentioned, in I69I.
In a similar spirit the company that obtained



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