THE
AMERICAN REPUBLIC: CHAPTER 10
ITS
CONSTITUTION TENDENCIES AND DESTINY
Orestes A. Brownson LL. D
TABLE OF CONTENTS
CONSTITUTION OF THE UNITED STATES
The constitution of the United States is twofold, written and
unwritten, the constitution of the people and the constitution of the
government.
The written constitution is simply a law ordained by the nation or
people instituting and organizing the government; the unwritten
constitution is the real or actual constitution of the people as a
state or sovereign community, and constituting them such or such a
state. It is Providential, not made by the nation, but born with it.
The written constitution is made and ordained by the sovereign power,
and presupposes that power as already existing and constituted.
The unwritten or Providential constitution of the United States is
peculiar, and difficult to understand, because incapable of being fully
explained by analogies borrowed from any other state historically
known, or described by political philosophers. It belongs to the
Graeco-Roman family, and is republican as distinguished from despotic
constitutions, but it comes under the head of neither monarchical nor
aristocratic, neither democratic nor mixed constitutions, and creates a
state which is neither a centralized state nor a confederacy. The
difficulty of understanding it is augmented by the peculiar use under
it of the word state, which does not in the American system mean a
sovereign community or political society complete in itself, like
France, Spain, or Prussia, nor yet a political society subordinate to
another political society and dependent on it. The American States are
all sovereign States united, but, disunited, are no States at all. The
rights and powers of the States are not derived from the United States,
nor the rights and powers of the United States derived from the States.
The simple fact is, that the political or sovereign people of the
United States exists as united States, and only as united States. The
Union and the States are coeval, born together, and can exist only
together. Separation is dissolution—the death of both. The United
States are a state, a single sovereign state; but this single sovereign
state consists in the union and solidarity of States instead of
individuals. The Union is in each of the States, and each of the
States is in the Union.
It is necessary to distinguish in the outset between the United States
and the government of the United States, or the so-called Federal
government, which the convention refused, contrary to its first
intention to call the national government. That government is not a
supreme national government, representing all the powers of the United
States, but a limited government, restricted by its constitution to
certain specific relations and interests. The United States are
anterior to that government, and the first question to be settled
relates to their internal and inherent Providential constitution as one
political people or sovereign state. The written constitution, in its
preamble, professes to be ordained by "We, the people of the United
States." Who are this people? How are they constituted, or what the
mode and conditions of their political existence? Are they the people
of the States severally? No; for they call themselves the people of
the United States. Are they a national people, really existing outside
and independently of their organization into distinct and mutually
independent States? No; for they define themselves to be the people of
the United States. If they had considered themselves existing as
States only, they would have said "We, the States," and if
independently of State organization, they would have said "We, the
people," do ordain, &c.
The key to the mystery is precisely in this appellation United States,
which is not the name of the country, for its distinctive name is
America, but a name expressive of its political organization. In it
there are no sovereign people without States, and no States without
union, or that are not united States. The term united is not part of a
proper name, but is simply an adjective qualifying States, and has its
full and proper sense. Hence while the sovereignty is and must be in
the States, it is in the States united, not in the States severally,
precisely as we have found the sovereignty of the people is in the
people collectively or as society, not in the people individually. The
life is in the body, not in the members, though the body could not
exist if it had no members; so the sovereignty is in the Union, not in
the States severally; but there could be no sovereign union without the
States, for there is no union where there is nothing united.
This is not a theory of the constitution, but the constitutional fact
itself. It is the simple historical fact that precedes the law and
constitutes the law-making power. The people of the United States are
one people, as has already been proved: they were one people, as far as
a people at all, prior to independence, because under the same Common
Law and subject to the same sovereign, and have been so since, for as
united States they gained their independence and took their place among
sovereign nations, and as united States they have possessed and still
possess the government. As their existence before independence in
distinct colonies did not prevent their unity, so their existence since
in distinct States does not hinder them from being one people. The
States severally simply continue the colonial organizations, and united
they hold the sovereignty that was originally in the mother country.
But if one people, they are one people existing in distinct State
organizations, as before independence they were one people existing in
distinct colonial organizations. This is the original, the unwritten,
and Providential constitution of the people of the United States.
This constitution is not conventional, for it existed before the people
met or could meet in convention. They have not, as an independent
sovereign people, either established their union, or distributed
themselves into distinct and mutually independent States. The union
and the distribution, the unity and the distinction, are both original
in their constitution, and they were born United States, as much and as
truly so as the son of a citizen is born a citizen, or as every one
born at all is born a member of society, the family, the tribe, or the
nation. The Union and the States were born together, are inseparable
in their constitution, have lived and grown up together; no serious
attempt till the late secession movement has been made to separate
them; and the secession movement, to all persons who knew not the real
constitution of the United States, appeared sure to succeed, and in
fact would have succeeded if, as the secessionists pretended, the Union
had been only a confederacy, and the States had been held together only
by a conventional compact, and not by a real and living bond of unity.
The popular instinct of national unity, which seemed so weak, proved to
be strong enough to defeat the secession forces, to trample out the
confederacy, and maintain the unity of the nation and the integrity of
its domain.
The people can act only as they exist, as they are, not as they are
not. Existing originally only as distributed in distinct and mutually
independent colonies, they could at first act only through their
colonial organizations, and afterward only through their State
organizations. The colonial people met in convention, in the person of
representatives chosen by colonies, and after independence in the
person of representatives chosen by States. Not existing outside of
the colonial or State organizations, they could not act outside or
independently of them. They chose their representatives or delegates
by colonies or States, and called at first their convention a Congress;
but by an instinct surer than their deliberate wisdom, they called it
not the Congress of the confederate, but of the United States,
asserting constitutional unity as well as constitutional multiplicity.
It is true, in their first attempt to organize a general government,
they called the constitution they devised Articles of Confederation,
but only because they had not attained to full consciousness of
themselves; and that they really meant union, not confederation, is
evident from their adopting, as the official style of the nation or new
power, united, not confederate States.
That the sovereignty vested in the States united, and was represented
in some sort by the Congress, is evident from the fact that the several
States, when they wished to adopt State constitutions in place of
colonial charters, felt not at liberty to do so without asking and
obtaining the permission of Congress, as the elder Adams informs us in
his Diary, kept at the time; that is, they asked and obtained the
equivalent of what has since, in the case of organizing new States,
been called an "enabling act." This proves that the States did not
regard themselves as sovereign States out of the Union, but as
completely sovereign only in it. And this again proves that the
Articles of Confederation did not correspond to the real, living
constitution of the people. Even then it was felt that the
organization and constitution of a State in the Union could be
regularly effected only by the permission of Congress; and no Territory
can, it is well known, regularly organize itself as a State, and adopt
a State constitution, without an enabling act by Congress, or its
equivalent.
New States, indeed, have been organized and been admitted into the
Union without an enabling act of Congress; but the case of Kansas, if
nothing else, proves that the proceeding is irregular, illicit,
invalid, and dangerous. Congress, of course, can condone the wrong and
validate the act, but it were better that the act should be validly
done, and that there should be no wrong to condone. Territories have
organized as States, adopted State constitutions, and instituted State
governments under what has been called "squatter sovereignty;" but such
sovereignty has no existence, because sovereignty is attached to the
domain; and the domain is in the United States. It is the offspring of
that false view of popular sovereignty which places it in the people
personally or generically, irrespective of the domain, which makes
sovereignty a purely personal right, not a right fixed to the soil, and
is simply a return to the barbaric constitution of power. In all
civilized nations, sovereignty is inseparable from the state, and the
state is inseparable from the domain. The will of the people, unless
they are a state, is no law, has no force, binds nobody, and justifies
no act.
The regular process of forming and admitting new States explains
admirably the mutual relation of the Union and the several States. The
people of a Territory belonging to the United States or included in the
public domain not yet erected into a State and admitted into the Union,
are subjects of the United States, without any political rights
whatever, and, though a part of the population, are no part of the
sovereign people of the United States. They become a part of that
people, with political rights and franchises, only when they are
erected into a State, and admitted into the Union as one of the United
States. They may meet in convention, draw up and adopt a constitution
declaring or assuming them to be a State, elect State officers,
senators, and representatives in the State legislature, and
representatives and senators in Congress, but they are not yet a State,
and are, as before, under the Territorial government established by the
General Government. It does not exist as a State till recognized by
Congress and admitted into the Union. The existence of the State, and
the rights and powers of the people within the State, depend on their
being a State in the Union, or a State united. Hence a State erected on
the national domain, but itself outside of the Union, is not an
independent foreign State, but simply no State at all, in any sense of
the term. As there is no union outside of the States, so is there no
State outside of the Union; and to be a citizen either of a State or of
the United States, it is necessary to be a citizen of a State, and of a
State in the Union. The inhabitants of Territories not yet erected
into States are subjects, not citizens—that is, not citizens with
political rights. The sovereign people are not the people outside of
State organization, nor the people of the States severally, but the
distinct people of the several States united, and therefore most
appropriately called the people of the United States.
This is the peculiarity of the American constitution and is
substantially the very peculiarity noted and dwelt upon by Mr. Madison
in his masterly letter to Edward Everett, published in the "North
American Review," October, 1830.
"I In order to understand the true character of the constitution of the
United States," says Mr. Madison, "the error, not uncommon, must be
avoided of viewing it through the medium either of a consolidated
government or of a confederated government, whilst it is neither the
one nor the other, but a mixture of both. And having, in no model, the
similitudes and analogies applicable to other systems of government, it
must, more than any other, be its own interpreter, according to its
text and the facts in the case.
"From these it will be seen that the characteristic peculiarities of
the constitution are: 1. The mode of its formation. 2. The division of
the supreme powers of government between the States in their united
capacity and the States in their individual capacities.
"1. It was formed not by the governments of the component States, as
the Federal Government, for which it was substituted, was formed; nor
was it formed by a majority of the people of the United States as a
single community, in the manner of a consolidated government. It was
formed by the States; that is, by the people in each of the States,
acting in their highest sovereign capacity, and formed consequently by
the same authority which formed the State constitution.
"Being thus derived from the same source as the constitutions of the
States, it has within each State the same authority as the constitution
of the State, and is as much a constitution in the strict sense of the
term, within its prescribed sphere, as the constitutions of the States
are within their respective spheres; but with this obvious and
essential difference, that, being a compact among the States in their
highest capacity, and constituting the people thereof one people for
certain purposes, it cannot be altered or annulled at the will of the
States individually, as the constitution of a State may be at its
individual will.
"2. And that it divides the supreme powers of government between the
government of the United States and the governments of the individual
States, is stamped on the face of the instrument; the powers of war and
of taxation, of commerce and treaties, and other enumerated powers
vested in the government of the United States, are of high and
sovereign a character as any of the powers reserved to the State
governments."
Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and nearly
all the old Republicans, and even the old Federalists, on the question
as to what is the actual constitution of the United States, took
substantially the same view; but they all, as well as Mr. Madison
himself, speak of the written constitution, which on their theory has
and can have only a conventional value. Mr. Madison evidently
recognizes no constitution of the people prior to the written
constitution, from which the written constitution, or the constitution
of the government, derives all its force and vitality. The
organization of the American people, which he knew well—no man
better,—and which he so justly characterizes, he supposes to have been
deliberately formed by the people themselves, through the
convention—not given them by Providence as their original and inherent
constitution. But this was merely the effect of the general doctrine
which he had adopted, in common with nearly all his contemporaries, of
the origin of the state in compact, and may be eliminated from his view
of what the constitution actually is, without affecting that view
itself.
Mr. Madison lays great stress on the fact that though the constitution
of the Union was formed by the States, it was formed, not by the
governments, but by the people of the several States; but this makes no
essential difference, if the people are the people of the States, and
sovereign in their severalty, and not in their union. Had it been
formed by the State governments with the acquiescence of the people, it
would have rested on as high authority as if formed by the people of
the State in convention assembled. The only difference is, that if the
State ratified it by the legislature, she could abrogate it by the
legislature; if in convention, she could abrogate it only in
convention. Mr. Madison, following Mr. Jefferson, supposes the
constitution makes the people of the several States one people for
certain specific purposes, and leaves it to be supposed that in regard
to all other matters, or in all other relations, they are sovereign;
and hence he makes the government a mixture of a consolidated
government and a confederated government, but neither the one nor the
other exclusively. Say the people of the United States were one people
in all respects, and under a government which is neither a consolidated
nor a confederated government, nor yet a mixture of the two, but a
government in which the powers of government are divided between a
general government and particular governments, each emanating from the
same source, and you will have the simple fact, and precisely what Mr.
Madison means, when is eliminated what is derived from his theory of
the origin of government in compact. It is this theory of the
conventional origin of the constitution, and which excludes the
Providential or real constitution of the people, that has misled him
and so many other eminent statesmen and constitutional lawyers.
The convention did not create the Union or unite the States, for it was
assembled by the authority of the United States who were present in it.
The United States or Union existed before the convention, as the
convention itself affirms in declaring one of its purposes to be "to
provide for a more perfect union." If there had been no union, it
could not and would not have spoken of providing for a more perfect
union, but would have stated its purpose to be to create or form a
union. The convention did not form the Union, nor in fact provide for
a more perfect union; it simply provided for the more perfect
representation or expression in the General government of the Union
already existing. The convention, in common with the statesmen at the
time, recognized no unwritten or Providential constitution of a people,
and regarded the constitution of government as the constitution of the
state, and consequently sometimes put the state for the government. In
interpreting its language, it is necessary to distinguish between its
act and its theory. Its act is law, its theory is not. The convention
met, among other things, to organize a government which should more
perfectly represent the union of the States than did the government
created by the Articles of Confederation.
The convention, certainly, professes to grant or concede powers to the
United States, and to prohibit powers to the States; but it simply puts
the state for the government. The powers of the United States are,
indeed, grants or trusts, but from God through the law of nature, and
are grants, trusts, or powers always conceded to every nation or
sovereign people. But none of them are grants from the convention.
The powers the convention grants or concedes to the United States are
powers granted or conceded by the United States to the General
government it assembled to organize and establish, which, as it extends
over the whole population and territory of the Union, and, as the
interests it is charged with relate to all the States in common, or to
the people as a whole, is with no great impropriety called the
government of the United States, in contradistinction from the State
governments, which have each only a local jurisdiction. But the more
exact term is, for the one, the general government, and for the others,
particular governments, as having charge only of the particular
interests of the State; and the two together constitute the government
of the United States, or the complete national government; for neither
the General government nor the State government is complete in itself.
The convention developed a general government, and prescribed its
powers, and fixed their limits and extent, as well as the bounds of the
powers of the State or particular governments; but they are the United
States assembled in convention that do all this, and, therefore,
strictly speaking, no powers are conceded to the United States that
they did not previously possess. The convention itself, in the
constitution it ordained, defines very clearly from whom the General
government holds its powers. It holds them, as we I have seen, from
"We, the people of the United States;" not we, the people of the States
severally, but of the States united. If it had meant the States
severally, it would have said, We, the States; if it had recognized and
meant the population of the country irrespective of its organization
into particular States, it would have said simply, We, the people. By
saying "We, the people of the United States," it placed the sovereign
power where it is, in the people of the States united.
The convention ordains that the powers not conceded to the General
government or prohibited to the particular governments, "are reserved
to the States respectively, or to the people." But the powers reserved
to the States severally are reserved by order of the United States, and
the powers not so reserved are reserved to the people. What people?
The first thought is that they are the people of the States severally;
for the constitution understands by people the state as distinguished
from the state government; but if this had been its meaning in this
place, it would have said, "are reserved to the States respectively, or
to the people" thereof. As it does not say so, and does not define the
people it means, it is necessary to understand by them the people
called in the preamble "the people of the United States." This is
confirmed by the authority reserved to amend the constitution, which
certainly is not reserved to the States severally, but necessarily to
the power that ordains the constitution—"We, the people of the United
States." No power except that which ordains is or can be competent to
amend a constitution of government. The particular mode prescribed by
the convention in which the constitution of the government may be
amended has no bearing on the present argument, because it is
prescribed by the States united, not severally, and the power to amend
is evidently reserved, not indeed to the General government, but to the
United States; for the ratification by any State or Territory not in
the Union counts for nothing. The States united, can, in the way
prescribed, give more or less power to the General government, and
reserve more or less power to the States individually. The so-called
reserved powers are really reserved to the people of the United States,
who can make such disposition of them as seems to them good.
The conclusion, then, that the General government holds from the States
united, not from the States severally, is not invalidated by the fact
that its constitution was completed only by the ratification of the
States in their individual capacity. The ratification was made
necessary by the will of the people in convention assembled; but the
convention was competent to complete it and put it in force without
that ratification, had it so willed. The general practice under the
American system is for the convention to submit the constitution it has
agreed on to the people, to be accepted or rejected by a plebiscitum;
but such submission, though it may be wise and prudent, is not
necessary. The convention is held to be the convention of the people,
and to be clothed with the full authority of the sovereign people, and
it is in this that it differs from the congress or the legislature. It
is not a congress of delegates or ministers who are obliged to act
under instructions, to report their acts to their respective sovereigns
for approval or rejection; it is itself sovereign, and may do whatever
the people themselves can do. There is no necessity for it to appeal
to a plebiscitum to complete its acts. That the convention, on the
score of prudence, is wise in doing so, nobody questions; but the
convention is always competent, if it chooses, to ordain the
constitution without appeal. The power competent to ordain the
constitution is always competent to change, modify, or amend it. That
amendments to the constitution of the government can be adopted only by
being proposed by a convention of all the States in the Union, or by
being proposed, by a two-thirds vote of both houses of Congress, and
ratified by three-fourths of the States, is simply a conventional
ordinance, which the convention can change at its pleasure. It proves
nothing as it stands but the will of the convention.
The term ratification itself, because the term commonly used in
reference to treaties between sovereign powers, has been seized on,
since sometimes used by the convention, to prove that the constitution
emanates from the States severally, and is a treaty or compact between
sovereign states, not an organic or fundamental law ordained by a
single sovereign will; but this argument is inadmissible, because, as
we have just seen, the convention is competent to ordain the
constitution without submitting it for ratification, and because the
convention uses sometimes the word adopt instead of the word ratify.
That the framers of the constitution held it to be a treaty, compact,
or agreement among sovereigns, there is no doubt, for they so held in
regard to all constitution of government; and there is just as little
doubt that they intended to constitute, and firmly believed that they
were constituting a real government. Mr. Madison's authority on this
point is conclusive. They unquestionably regarded the States, prior to
the ratification of the constitution they proposed, as severally
sovereign, as they were declared to be by the old Articles of
Confederation, but they also believed that all individuals are
sovereign prior to the formation of civil society. Yet very few, if
any, of them believed that they remained sovereign after the adoption
of the constitution; and we may attribute to their belief in the
conventional origin of all government,—the almost universal belief of
the time among political philosophers,—the little account which they
made of the historical facts that prove that the people of the United
States were always one people, and that the States never existed as
severally sovereign states.
The political philosophers of the present day do not generally accept
the theory held by our fathers, and it has been shown in these pages to
be unsound and incompatible with the essential nature of government.
The statesmen of the eighteenth century believed that the state is
derived from the people individually, and held that sovereignty is
created by the people in convention. The rights and powers of the
state, they held, were made up of the rights held by individuals under
the law of nature, and which the individuals surrendered to civil
society on its formation. So they supposed that independent sovereign
states might meet in convention, mutually agree to surrender a portion
of their rights, organize their surrendered rights into a real
government, and leave the convention shorn, at least, of a portion of
their sovereignty. This doctrine crops out everywhere in the writings
of the elder Adams, and is set forth with rare ability by Mr. Webster,
in his great speech in the Senate against the State sovereignty
doctrine of General Hayne and Mr. Calhoun, which won for him the
honorable title of Expounder of the Constitution—and expound it he, no
doubt, did in the sense of its framers. He boldly concedes that prior
to the adoption of the constitution, the people of the United States
were severally sovereign states, but by the constitution they were made
one sovereign political community or people, and that the States,
though retaining certain rights, have merged their several sovereignty
in the Union.
The subtle mind of Mr. Calhoun, who did not hold that a state can
originate in compact, proved to Mr. Webster that his theory could not
stand; that, if the States went into the convention sovereign States,
they came out of it sovereign States; and that the constitution they
formed could from the nature of the case be only a treaty, compact, or
agreement between sovereigns. It could create an agency, but not a
government. The sovereign States could only delegate the exercise of
their sovereign powers, not the sovereign powers themselves. The
States could agree to exercise certain specific powers of sovereignty
only in common, but the force and vitality of the agreement depended on
the States, parties to the agreement retaining respectively their
sovereignty. Hence, he maintained that sovereignty, after as before
the convention, vested in the States severally. Hence State
sovereignty, and hence his doctrine that in all cases that cannot come
properly before the Supreme Court of the United States for decision,
each State is free to decide for itself, on which he based the right of
nullification, or the State veto of acts of Congress whose
constitutionality the State denies. Mr. Calhoun was himself no
secessionist, but he laid down the premises from which secession is the
logical deduction; and large numbers of young men, among the most open,
the most generous, and the most patriotic in the country, adopted his
premises, without being aware of this fact any more than he himself
was, and who have been behind none in their loyalty to the Union, and
in their sacrifices to sustain it, in the late rebellion.
The formidable rebellion which is now happily suppressed, and which
attempted to justify itself by the doctrine of State sovereignty, has
thrown, in many minds, new light on the subject, and led them to
re-examine the historical facts in the case from a different point of
view, to see if Mr. Calhoun's theory is not as unfounded as he had
proved Mr. Webster's theory to be. The facts in the case really
sustain neither, and both failed to see it: Mr. Calhoun because he had
purposes to accomplish which demanded State sovereignty, and Mr.
Webster because he examined them in the distorting medium of the theory
or understanding of the statesmen of the eighteenth century. The civil
war has vindicated the Union, and defeated the armed forces of the
State sovereignty men; but it has not refuted their doctrine, and as
far as it has had any effect, it has strengthened the tendency to
consolidation or centralism.
But the philosophy, the theory of government, the understanding of the
framers of the constitution, must be considered, if the expression will
be allowed, as obiter dicta, and be judged on their merits. What binds
is the thing done, not the theory on which it was done, or on which the
actors explained their work either to themselves or to others. Their
political philosophy, or their political theory, may sometimes affect
the phraseology they adopt, but forms no rule for interpreting their
work. Their work was inspired by and accords with the historical facts
in the case, and is authorized and explained by them. The American
people were not made one people by the written constitution, as Mr.
Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but
were made so by the unwritten constitution, born with and inherent in
them.
CHAPTER XI.
THE CONSTITUTION—CONTINUED.
Providence, or God operating through historical facts, constituted the
American people one political or sovereign people, existing and acting
in particular communities, organizations, called states. This one
people organized as states, meet in convention, frame and ordain the
constitution of government, or institute a general government in place
of the Continental Congress; and the same people, in their respective
State organizations, meet in convention in each State, and frame and
ordain a particular government for the State individually, which, in
union with the General government, constitutes the complete and supreme
government within the States, as the General government, in union with
all the particular governments, constitutes the complete and supreme
government of the nation or whole country. This is clearly the view
taken by Mr. Madison in his letter to Mr. Everett, when freed from his
theory of the origin of government in compact.
The constitution of the people as one people, and the distinction at
the same time of this one people into particular States, precedes the
convention, and is the unwritten constitution, the Providential
constitution, of the American people or civil society, as distinguished
from the constitution of the government, which, whether general or
particular, is the ordination of civil society itself. The unwritten
constitution is the creation or constitution of the sovereign, and the
sovereign providentially constituted constitutes in turn the
government, which is not sovereign, but is clothed with just so much
and just so little authority as the sovereign wills or ordains.
The sovereign in the republican order is the organic people, or State,
and is with us the United States, for with us the organic people exist
only as organized into States united, which in their union form one
compact and indissoluble whole. That is to say, the organic American
people do not exist as a consolidated people or state; they exist only
as organized into distinct but inseparable States. Each State is a
living member of the one body, and derives its life from its union with
the body, so that the American state is one body with many members; and
the members, instead of being simply individuals, are States, or
individuals organized into States. The body consists of many members,
and is one body, because the members are all members of it, and members
one of another. It does not exist as separate or distinct from the
members, but exists in their solidarity or membership one of another.
There is no sovereign people or existence of the United States
distinguishable from the people or existence of the particular States
united. The people of the United States, the state called the United
States, are the people of the particular States united. The solidarity
of the members constitutes the unity of the body. The difference
between this view and Mr. Madison's is, that while his view supposes
the solidarity to be conventional, originating and existing in compact,
or agreement, this supposes it to be real, living, and prior to the
convention, as much the work of Providence as the existence in the
human body of the living solidarity of its members. One law, one life,
circulates through all the members, constituting them a living
organism, binding them in living union, all to each and each to all.
Such is the sovereign people, and so far the original unwritten
constitution. The sovereign, in order to live and act, must have an
organ through which he expresses his will. This organ under the
American system, is primarily the Convention. The convention is the
supreme political body, the concrete sovereign authority, and exercises
practically the whole sovereign power of the people. The convention
persists always, although not in permanent session. It can at any time
be convened by the ordinary authority of the government, or, in its
failure, by a plebiscitum.
Next follows the Government created and constituted by the convention.
The government is constituted in such manner, and has such and only
such powers, as the convention ordains. The government has, in the
strict sense, no political authority under the American system, which
separates the government from the convention. All political questions
proper, such as the elective franchise, eligibility, the constitution
of the several departments of government, as the legislative, the
judicial, and the executive, changing, altering, or amending the
constitution of government, enlarging, or contracting its powers, in a
word, all those questions that arise on which it is necessary to take
the immediate orders of the sovereign, belong not to the government,
but to the convention; and where the will of the sovereign is not
sufficiently expressed in the constitution, a new appeal to the
convention is necessary, and may always be had. The constitution of
Great Britain makes no distinction between the convention and the
government. Theoretically the constitution of Great Britain is feudal,
and there is, properly speaking, no British state; there are only the
estates, king, lords, and commons, and these three estates constitute
the Parliament, which is held to be omnipotent; that is, has the
plenitude of political sovereignty. The British Parliament, composed
of the three estates, possesses in itself all the powers of the
convention in the American constitution, and is at once the convention
and the government. The imperial constitution of France recognizes no
convention, but clothes the senate with certain political functions,
which, in some respects, subjects theoretically the sovereign to his
creature. The emperor confessedly holds his power by the grace of God
and the will of the nation, which is a clear acknowledgment that the
sovereignty vests in the French people as the French state; but the
imperial constitution, which is the constitution of the government, not
of the state, studies, while acknowledging the sovereignty of the
people, to render it nugatory, by transferring it, under various subtle
disguises, to the government, and practically to the emperor as chief
of the government. The senate, the council of state, the legislative
body, and the emperor, are all creatures of the French state, and have
properly no political functions, and to give them such functions is to
place the sovereign under his own subjects! The real aim of the
imperial constitution is to secure despotic power under the guise of
republicanism. It leaves and is intended to leave the nation no way of
practically asserting its sovereignty but by either a revolution or a
plebiscitum, and a plebiscitum is permissible only where there is no
regular government.
The British constitution is consistent with itself, but imposes no
restriction on the power of the government. The French imperial
constitution is illogical, inconsistent with itself as well as with the
free action of the nation. The American constitution has all the
advantages of both, and the disadvantages of neither. The convention
is not the government like the British Parliament, nor a creature of
the state like the French senate, but the sovereign state itself, in a
practical form. By means of the convention the government is
restricted to its delegated powers, and these, if found in practice
either too great or too small, can be enlarged or contracted in a
regular, orderly way, without resorting to a revolution or to a
plebiscitum. Whatever political grievances there may be, there is
always present the sovereign convention competent to redress them. The
efficiency of power is thus secured without danger to liberty, and
freedom without danger to power. The recognition of the convention,
the real political sovereign of the country and its separation from and
independence of the ordinary government, is one of the most striking
features of the American constitution.
The next thing to be noted, after the convention, is the constitution
by the convention of the government. This constitution, as Mr. Madison
well observes, divides the powers conceded by the convention to
government between the General Government and the particular State
governments. Strictly speaking, the government is one, and its powers
only are divided and exercised by two sets of agents or ministries.
This division of the powers of government could never have been
established by the convention if the American people had not been
providentially constituted one people, existing and acting through
particular State organizations. Here the unwritten constitution, or
the constitution written in the people themselves, rendered practicable
and dictated the written constitution, or constitution ordained by the
convention and engrossed on parchment. It only expresses in the
government the fact which pre-existed in the national organization and
life.
This division of the powers of government is peculiar to the United
States, and is an effective safeguard against both feudal
disintegration and Roman centralism. Misled by their prejudices and
peculiar interests, a portion of the people of the United States,
pleading in their justification the theory of State sovereignty,
attempted disintegration, secession, and national independence separate
from that of the United States, but the central force of the
constitution was too strong for them to succeed. The unity of the
nation was too strong to be effectually broken. No doubt the reaction
against secession and disintegration will strengthen the tendency to
centralism, but centralism can succeed no better than disintegration
has succeeded because the General government has no subsistentia, no
suppositum, to borrow a theological term, outside or independent of the
States. The particular governments are stronger, if there be any
difference, to protect the States against centralism than the General
government is to protect the Union against disintegration; and after
swinging for a time too far toward one extreme and then too far toward
the other, the public mind will recover its equilibrium, and the
government move on in its constitutional path.
Republican Rome attempted to guard against excessive centralism by the
tribunitial veto, or by the organization of a negative or obstructive
power. Mr. Calhoun thought this admirable, and wished to effect the
same end here, where it is secured by other, more effective, and less
objectionable means, by a State veto on the acts of Congress, by a dual
executive, and by substituting concurrent for numerical majorities.
Imperial Rome gradually swept away the tribunitial veto, concentrated
all power in the hands of the emperor, became completely centralized,
and fell. The British constitution seeks the same end by substituting
estates for the state, and establishing a mixed government, in which
monarchy, aristocracy, and democracy temper, check, or balance each
other; but practically the commons estate has become supreme, and the
nobility govern not in the house of lords, and can really influence
public affairs only through the house of commons. The principle of the
British constitution is not the division of the powers of government,
but the antagonism of estates, or rather of interests, trusting to the
obstructive influence of that antagonism to preserve the government
from pure centralism. Hence the study of the British statesman is to
manage diverse and antagonistic parties and interests so as to gain the
ability to act, which he can do only by intrigue, cajolery, bribery in
one form or another, and corruption of every sort. The British
government cannot be carried on by fair, honest, and honorable means,
any more than could the Roman under the antagonism created by the
tribunitial veto. The French tried the English system of organized
antagonism in 1789, as a cure for the centralism introduced by
Richelieu and Louis XIV., and again under the Restoration and Louis
Philippe, and called it the system of constitutional guarantees; but
they could never manage it, and they have taken refuge in unmitigated
centralism under Napoleon III., who, however well disposed, finds no
means in the constitution of the French nation of tempering it. The
English system, called the constitutional, and sometimes the
parliamentary system, will not work in France, and indeed works really
well nowhere.
The American system, sometimes called the Federal system, is not
founded on antagonism of classes, estates, or interests, and is in no
sense a system of checks and balances. It needs and tolerates no
obstructive forces. It does not pit section against section, the
States severally against the General government, nor the General
government against the State governments, and nothing is more hurtful
than the attempt to explain it and work it on the principles of British
constitutionalism. The convention created no antagonistic powers; it
simply divided the powers of government, and gave neither to the
General government nor to the State governments all the powers of
government, nor in any instance did it give to the two governments
jurisdiction in the same matters. Hence each has its own sphere, in
which it can move on without colliding with that of the other. Each is
independent and complete in relation to its own work, incomplete and
dependent on the other for the complete work of government.
The division of power is not between a NATIONAL government and State
governments, but between a GENERAL government and particular
governments. The General government, inasmuch as it extends to matters
common to all the States, is usually called the Government of the
United States, and sometimes the Federal government, to distinguish it
from the particular or State governments, but without strict propriety;
for the government of the United States, or the Federal government,
means, in strictness, both the General government and the particular
Governments, since neither is in itself the complete government of the
country. The General government has authority within each of the
States, and each of the State governments has authority in the Union.
The line between the Union and the States severally, is not precisely
the line between the General government and the particular governments.
As, for instance, the General government lays direct taxes on the
people of the States, and collects internal revenue within them; and
the citizens of a particular State, and none others, are electors of
President and Vice-President of the United States, and representatives
in the lower house of Congress, while senators in Congress are elected
by the State legislatures themselves.
The line that distinguishes the two governments is that which
distinguishes the general relations and interests from the particular
relations and interests of the people of the United States. These
general relations and interests are placed under the General
government, which, because its jurisdiction is coextensive with the
Union, is called the Government of the United States; the particular
relations and interests are placed under particular governments, which,
because their jurisdiction is only coextensive, with the States
respectively, are called State governments. The General government
governs supremely all the people of the United States and Territories
belonging to the Union, in all their general relations and interests,
or relations and interests common alike to them all; the particular or
State government governs supremely the people of a particular State, as
Massachusetts, New York, or New Jersey, in all that pertains to their
particular or private rights, relations, and interests. The powers of
each are equally sovereign, and neither are derived from the other.
The State governments are not subordinate to the General government,
nor the General government to the State governments. They are
co-ordinate governments, each standing on the same level, and deriving
its powers from the same sovereign authority. In their respective
spheres neither yields to the other. In relation to the matters within
its jurisdiction, each government is independent and supreme in regard
of the other, and subject only to the convention.
The powers of the General government are the power—
To lay and collect taxes, duties, imposts, and excises, to pay the
debts and provide for the general welfare of the United States; to
borrow money on the credit of the United States; to regulate commerce
with foreign nations, among the several States, and with the Indian
tribes; to establish a uniform rule of naturalization, and uniform laws
on the subject of bankruptcies throughout the United States; to coin
money and regulate the value thereof, and fix the standard of weights
and measures; to provide for the punishment of counterfeiting the
securities and current coin of the United States; to establish
post-offices and post-roads; to promote the progress of science and of
the useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries; to
define and punish piracies and felonies committed on the high seas, and
offences against the law of nations; to declare war, grant letters of
marque and reprisal, and make rules concerning captures on land and
water; to raise and support armies; to provide and maintain a navy; to
make rules for the government of the land and naval forces; to provide
for calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions; to provide for organizing,
arming, and disciplining the militia, and of governing such part of
them as may be employed in the service of the United States; to
exercise exclusive legislation in all cases whatsoever over such
district, not exceeding ten miles square, as may by cession of
particular States and the acceptance of Congress, become the seat of
the government of the United States, and to exercise a like authority
over all places purchased by the consent of the legislature of the
State in which the same shall be, for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings; and to make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this constitution in
the government of the United States, or in any department or office
thereof.
In addition to these, the General government is clothed with the
treaty-making power, and the whole charge of the foreign relations of
the country; with power to admit new States into the Union; to dispose
of and make all needful rules and regulations concerning the territory
and all other property belonging to the United States; to declare, with
certain restrictions, the punishment of treason, the constitution
itself defining what is treason against the United States; and to
propose, or to call, on the application of the legislatures of
two-thirds of all the states, a convention for proposing amendments to
this constitution; and is vested with supreme judicial power, original
or appellate, in all cases of law and equity arising under this
constitution, the laws of the United States, and treaties made or to be
made under their authority, in all cases affecting ambassadors, other
public ministers, and consuls, in all cases of admiralty and maritime
jurisdiction, in all controversies to which the United States shall be
a party, all controversies between two or more States, between a State
and citizens of another State, between citizens of different States,
between citizens of the same State claiming lands under grants of
different States, and between a State or the citizens thereof and
foreign states, citizens, or subjects.
These, with what is incidental to them, and what is necessary and
proper to carry them into effect, are all the positive powers with
which the convention vests the General government, or government of the
United States, as distinguished from the governments of the particular
States; and these, with the exception of what relates to the district
in which it has its seat, and places of forts, magazines, &c., are of a
general nature, and restricted to the common relations and interests of
the people, or at least to interests and relations which extend beyond
the limits of a particular State. They are all powers that regard
matters which extend beyond not only the individual citizen, but the
individual State, and affect alike the relations and interests of all
the States, or matters which cannot be disposed of by a State
government without the exercise of extra-territorial jurisdiction.
They give the government no jurisdiction of questions which affect
individuals or citizens only in their private and domestic relations
which lie wholly within a particular State. The General government
does not legislate concerning private rights, whether of persons or
things, the tenure of real estate, marriage, dower, inheritance, wills,
the transferrence or transmission of property, real or personal; it can
charter no private corporations, out of the District of Columbia, for
business, literary, scientific, or eleemosynary purposes, establish no
schools, found no colleges or universities, and promote science and the
useful arts only by securing to authors and inventors for a time the
exclusive right to their writings and discoveries. The United States
Bank was manifestly unconstitutional, as probably are the present
so-called national banks. The United States Bank was a private or
particular corporation, and the present national banks are only
corporations of the same sort, though organized under a general law.
The pretence that they are established to supply a national currency,
does not save their constitutionality, for the convention has not given
the General government the power nor imposed on it the duty of
furnishing a national currency. To coin money, and regulate the value
thereof, is something very different from authorizing private companies
to issue bank notes, on the basis of the public stocks held as private
property, or even on what is called a specie basis. To claim the power
under the general welfare clause would be a simple mockery of good
sense. It is no more for the general welfare than any other successful
private business. The private welfare of each is, no doubt, for the
welfare of all, but not therefore is it the "general welfare," for what
is private, particular in its nature, is not and cannot be general. To
understand by general welfare that which is for the individual welfare
of all or the greater number, would be to claim for the General
government all the powers of government, and to deny that very division
of powers which is the crowning merit of the American system. The
general welfare, by the very force of the words themselves, means the
common as distinguished from the private or individual welfare. The
system of national banks may or may not be a good and desirable system,
but it is difficult to understand the constitutional power of the
General government to establish it.
On the ground that its powers are general, not particular, the General
government has no power to lay a protective tariff. It can lay a
tariff for revenue, not for protection of home manufactures or home
industry; for the interests fostered, even though indirectly
advantageous to the whole people, are in their nature private or
particular, not general interests, and chiefly interests of private
corporations and capitalists. Their incidental or even consequential
effects do not change their direct and essential nature. So with
domestic slavery. Slavery comes under the head of private rights,
whether regarded on the side of the master or on the side of the slave.
The right of a citizen to hold a slave, if a right at all, is the
private right of property, and the right of the slave to his freedom is
a private and personal right, and neither is placed under the safeguard
of the General government, which has nowhere, unless in the District of
Columbia and the places over which it has exclusive legislative power
in all cases whatsoever, either the right to establish it or to abolish
it, except perhaps under the war power, as a military necessity, an
indemnity for the past, or a security for the future.
This applies to what are called Territories as well as to the States.
The right of the government to govern the Territories in regard to
private and particular rights and interests, is derived from no express
grant of power, and is held only ex necessitate—the United States
owning the domain, and there being no other authority competent to
govern them. But, as in the case of all powers held ex necessitate,
the power is restricted to the absolute necessity in the case. What
are called Territorial governments, to distinguish them from the State
governments, are only provisional governments, and can touch private
rights and interests no further than is necessary to preserve order and
prepare the way for the organization and installation of a regular
State government. Till then the law governing private rights is the
law that was in force, if any such there was, when the territory became
by purchase, by conquest, or by treaty, attached to the domain of the
United States.
Hence the Supreme Court declared unconstitutional the ordinance of
1787, prohibiting slavery in what was called the territory of the
Northwest, and the so-called Missouri Compromise, prohibiting slavery
north of the parallel 36° 30'. The Wilmot proviso was for the same
reason unconstitutional. The General government never had and has not
any power to exclude slavery from the Territories, any more than to
abolish it in the States. But slavery being a local institution,
sustained neither by the law of nature nor the law of nations, no
citizen migrating from a slave State could carry his slaves with him,
and hold them as slaves in the Territory. Rights enacted by local law
are rights only in that locality, and slaves carried by their masters
into a slave State even, are free, unless the State into which they are
carried enacts to the contrary. The only persons that could be held as
slaves in a Territory would be those who were slaves or the children of
those who were slaves in the Territory when it passed to the United
States. The whole controversy on, slavery in the Territories, and
which culminated in the civil war, was wholly unnecessary, and never
could have occurred had the constitution been properly understood and
adhered to by both sides. True, Congress could not exclude slavery
from the Territory, but neither could citizens migrating to them hold
slaves in them; and so really slavery was virtually excluded, for the
inhabitants in nearly all of them, not emigrants from the States after
the cession to the United States, were too few to be counted.
The General government has power to establish a uniform rule of
naturalization, to which all the States must conform, and it was very
proper that it should have this power, so as to prevent one State from
gaining by its naturalization laws an undue advantage over another; but
the General government has itself no power to naturalize a single
foreigner, or in any case to say who shall or who shall not be
citizens, either of a State or of the United States, or to declare who
may or may not be electors even of its own officers. The convention
ordains that members of the house of representatives shall be chosen by
electors who have the qualifications requisite for electors of the most
numerous branch of the State legislature, but the State determines
these qualifications, and who do or do not possess them; that the
senators shall be chosen by the State legislatures, and that the
electors of President and Vice-President shall be appointed in such
manner as the respective State legislatures may direct. The whole
question of citizenship, what shall or shall not be the qualifications
of electors, who shall or shall not be freemen, is reserved to the
States, as coming under the head of personal or private rights and
franchises. In practice, the exact line of demarcation may not always
have been strictly observed either by the General government or by the
State governments; but a careful study of the constitution cannot fail
to show that the division of powers is the division or distinction
between the public and general relations and interests, rights and
duties of the people, and their private and particular relations and
interests, rights and duties. As these two classes of relations and
interests, rights and duties, though distinguishable, are really
inseparable in nature, it follows that the two governments are
essential to the existence of a complete government, or to the
existence of a real government in its plenitude and integrity. Left to
either alone, the people would have only an incomplete, an initial, or
inchoate government. The General government is the complement of the
State governments, and the State governments are the complement of the
General government.
The consideration of the powers denied by the convention to the General
government and to the State governments respectively, will lead to the
same conclusion. To the General government is denied expressly or by
necessary implication all jurisdiction in matters of private rights and
interests, and to the State government is denied all jurisdiction in
right, or interests which extend, as has been said, beyond the
boundaries of the State. "No State shall enter into any treaty,
alliance, or confederation; grant letters of marque and reprisal; coin
money, emit bills of credit, make any thing but gold and silver coin a
tender in the payment of debts; pass any bill of attainder, ex post
facto law, or law impairing the obligation of contracts, or grant any
title of nobility. No State shall, without the consent of Congress,
lay any imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws and the net
produce of all duties and imposts laid by any State on imports and
exports shall be for the use of the treasury of the United States, and
all such laws shall be subject to the revision and control of Congress.
No State shall, without the consent of Congress, lay any duty of
tonnage, keep troops or ships-of-war in time of peace, enter into any
agreement or compact with another State or with a foreign power, or
engage in war, unless actually invaded, or in such imminent danger as
will not admit of delay."
The powers denied to the States in some matters which are rather
private and particular, such as bills of attainder, ex post facto laws,
laws impairing the obligation of contracts, granting titles of
nobility, are denied equally to the General government. There is
evidently a profound logic in the constitution, and there is not a
single provision in it that is arbitrary, or anomalous, or that does
not harmonize dialectically with the whole, and with the real
constitution of the American people. At first sight the reservation to
the State of the appointment of the officers of the militia might seem
an anomaly; but as the whole subject of internal police belongs to the
State, it should have some military force at its command. The subject
of bankruptcies, also, might seem to be more properly within the
province of the State, and so it would be if commerce between the
several States had not been placed under Congress, or if trade were
confined to the citizens of the State and within its boundaries; but as
such is not the case, it was necessary to place it under the General
government, in order that laws on the subject might be uniform
throughout the Union, and that the citizens of all the States, and
foreigners trading with them, should be placed on an equal footing, and
have the same remedies. The subject follows naturally in the train of
commerce, for bankruptcies, as understood at the time, were confined to
the mercantile class, bankers, and brokers; and since the regulation of
commerce, foreign and inter-state, was to be placed under the sole
charge of the General government, it was necessary that bankruptcy
should be included. The subject of patents is placed under the General
government, though the patent is a private right, because it was the
will of the convention that the patent should be good in all the
States, as affording more encouragement to science and the useful arts
than if good only within a single State, or if the power were left to
each State to recognize or not patents granted by another. The right
created, though private in its nature, is Yet general or common to all
the States in its enjoyment or exercise.
The division of the powers of government between a General government
and particular governments, rendered possible and practicable by the
original constitution of the people themselves, as one people existing
and acting through State organizations, is the American method of
guarding against the undue centralism to which Roman imperialism
inevitably tends; and it is far simpler and more effective than any of
the European systems of mixed governments, which seek their end by
organizing an antagonism of interests or classes. The American method
demands no such antagonism, no neutralizing of one social force by
another, but avails itself of all the forces of society, organizes them
dialectically, not antagonistically, and thus protects with, equal
efficiency both public authority and private rights. The General
government can never oppress the people as individuals, or abridge
their private rights or personal freedom and independence, because
these are not within its jurisdiction, but are placed in charge, within
each State, of the State government, which, within its sphere, governs
as supremely as the General government: the State governments cannot
weaken the public authority of the nation or oppress the people in
their general rights and interests, for these are withdrawn from State
jurisdiction, and placed under charge of a General government, which,
in its sphere, governs as supremely as the State government. There is
no resort to a system of checks and balances; there is no restraint on
power, and no systematic distrust of power, but simply a division of
powers between two co-ordinate governments, distinct but inseparable,
moving in distinct spheres, but in the same direction, or to a common
end. The system is no invention of man, is no creation of the
convention, but is given us by Providence in the living constitution of
the American people. The merit of the statesmen of 1787 is that they
did not destroy or deface the work of Providence, but accepted it, and
organized the government in harmony with the real orders the real
elements given them. They suffered themselves in all their positive
substantial work to be governed by reality, not by theories and
speculations. In this they proved themselves statesmen, and their work
survives; and the republic, laugh as sciolists may, is, for the present
and future, the model republic—as much so as was Rome in her day; and
it is not simply national pride nor American self-conceit that
pronounces its establishment the beginning of a new and more advanced
order of civilization; such is really the fact.
The only apparently weak point in the system is in the particular
States themselves. Feudalism protected the feudal aristocracy
effectively for a time against both the king and the people, but left
the king and the people without protection against the aristocracy, and
hence it fell. It was not adequate to the wants of civil society, did
not harmonize all social elements, and protect all social and
individual rights and interests, and therefore could not but fail. The
General government takes care of public authority and rights; the State
protects private rights and personal freedom as against the General
government: but what protects the citizens in their private rights,
their personal freedom and independence, against the particular State
government? Universal suffrage, answers the democrat. Armed with the
ballot, more powerful than the sword, each citizen is able to protect
himself. But this is theory, not reality. If it were true, the
division of the powers of government between two co-ordinate,
governments would be of no practical importance. Experience does not
sustain the theory, and the power of the ballot to protect the
individual may be rendered ineffective by the tyranny of party.
Experience proves that the ballot is far less effective in securing the
freedom and independence of the individual citizen than is commonly
pretended. The ballot of an isolated individual counts for nothing.
The individual, though armed with the ballot, is as powerless, if he
stands alone, as if he had it not. To render it of any avail he must
associate himself with a party, and look for his success in the success
of his party; and to secure the success of his party, he must give up
to it his own private convictions and free will. In practice,
individuals are nothing individually, and parties are every thing.
Even the suppression of the late rebellion, and the support of the
Administration in doing it, was made a party question, and the
government found the leaders of the party opposed to the Republican
party an obstacle hardly less difficult to surmount than the chiefs of
the armies of the so-called Confederate States.
Parties are formed, one hardly knows how, and controlled, no one knows
by whom; but usually by demagogues, men who have some private or
personal purposes, for which they wish, through party to use the
government. Parties have no conscience, no responsibility, and their
very reason of being is, the usurpation and concentration of power.
The real practical tendency of universal suffrage is to democratic,
instead of an imperial, centralism. What is to guard against this
centralism? Not universal suffrage, for that tends to create it; and if
the government is left to it, the government becomes practically the
will of an ever shifting and irresponsible majority. Is the remedy in
written or paper constitutions? Party can break through them, and by
making the judges elective by party, for short terms, and re-eligible,
can do so with impunity. In several of the States, the dominant
majority have gained the power to govern at will, without any let or
hindrance. Besides, constitutions can be altered, and have been
altered, very nearly at the will of the majority. No mere paper
constitutions are any protection against the usurpations of party, for
party will always grasp all the power it can.
Yet the evil is not so great as it seems, for in most of the States the
principle of division of powers is carried into the bosom of the State
itself; in some States further than in others, but in all it obtains to
some extent. In what are called the New England States, the best
governed portion of the Union, each town is a corporation, having
important powers and the charge of all purely local matters—chooses
its own officers, manages its own finances, takes charge of its own
poor, of its own roads and bridges, and of the education of its own
children. Between these corporations and the State government are the
counties, that take charge of another class of interests, more general
than those under the charge of the town, but less general than those of
the State. In the great central and Northwestern States the same
system obtains, though less completely carried out. In the Southern
and Southwestern States, the town corporations hardly exist, and the
rights and interests of the poorer classes of persons have been less
well protected in them than in the Northern and Eastern States. But
with the abolition of slavery, and the lessening of the influence of
the wealthy slaveholding class, with the return of peace and the
revival of agricultural, industrial, and commercial prosperity, the New
England system, in its main features, is pretty sure to be gradually
introduced, or developed, and the division of powers in the State to be
as effectively and as systematically carried out as it is between the
General government and the particular or State governments. So, though
universal suffrage, good as far as it goes, is not alone sufficient,
the division of powers affords with it a not inadequate protection.
No government, whose workings are intrusted to men, ever is or can be
practically perfect—secure all good, and guard against all evil. In
all human governments there will be defects and abuses, and he is no
wise man who expects perfection from imperfection. But the American
constitution, taken as a whole, and in all its parts, is the least
imperfect that has ever existed, and under it individual rights,
personal freedom and independence, as well as public authority or
society, are better protected than under any other; and as the few
barbaric elements retained from the feudal ages are eliminated, the
standard of education elevated, and the whole population Americanized,
moulded by and to the American system, it will be found to effect all
the good, with as little of the evil, as can be reasonably expected
from any possible civil government or political constitution of society.
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