tiu.
 
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 ^ 3 1822 02659 4671 
 
 Social Sciences & Humanities Library 
 
 University of California, San Diego 
 Please Note: This item is subject to recall. 
 
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 CI 39 (5/97) 
 
 UCSD Lib
 
 •
 
 THE TRIAL OF THE CONSTITUTION.
 
 THE 
 
 TRIAL or THE CONSTITUTION. 
 
 BY 
 
 SIDNEY GEOllGE FISHER, 
 
 AUTHOR OF 
 
 '•THE LAW OF THE TERRITORIES," "THE LAWS OF RACE AS 
 CONNECTED WITH SLAVERY," ETC. ETC. 
 
 ' .Stand ye in the ways, and see and ask for the old paths, where is the good way, and walk 
 therein, and ye shall find rest for your souls." Jer. 6 : 16. 
 
 PHILADELPHIA: 
 J. 13. L I P P I N C O T T & CO. 
 
 LONDON : SAMPSON LOW, SON k CO. 
 
 18G2.
 
 i 
 
 Entered, according to Act of Congress, in the year 1862, by 
 
 SIDNEY GEORGE FISHER, 
 
 In the Clerk's Office of the District Court of the United States for the Eastern 
 District of Pennsylvania.
 
 P 11 E F A C E, 
 
 As passing events are referred to in the following pages, 
 it is proper to state that the third, fourth and fifth chapters, 
 except a few additions and alterations, were written before 
 the first and second. My original design was to write an 
 essay on the constitutional provision for suspending the "Writ 
 of Habeas Corpus; and it was suggested by Mr. Binncy's 
 first pamphlet on that subject, — the reasoning of whicli. not- 
 withstanding my deference to such high authority, did not 
 satisty my mind. Some weeks before the appearance of 
 Mr. Binney's second pamphlet, my argument on the Habeas 
 Corpus \va8 finished; but the writing of it, and the events of 
 the war, had suggested reflections on other parts of the 
 Constitiition, I was much impressed by the fact, that 
 Mr. Binney and others had thought it necessary to write on 
 the subject at all; that the law should be unsettled and dis- 
 puted on questions of such vital importance as the power of 
 the Go\"ernment to defend the public safety, and the security 
 afforded, by the Constitution, to personal liberty. 
 
 "Why is the law unsettled? Why can no man tell what 
 
 are the actual, undoubted powers of the Goveniment? Is it 
 
 not because our system is new and untried; and that now, 
 
 when it is for the first time subjected to the test of a severe 
 
 I
 
 VI PREFACE. 
 
 ordeal, its defects are becoming manifest, — defects hitherto 
 unsuspected? No such questions have arisen under the 
 English Constitution for nearly two centuries. 
 
 Following the course of reasoning thus suggested, one 
 topic opened the way to another, until at length I ended 
 where the work more appropriately begins, — with a discus- 
 sion of the nature of the Constitution itself, and of the 
 powers which it does or must grant to the Clovernnient. over 
 itself, and over the Union. 
 
 Books, laws, facts, even words and j)hrases, sometimes 
 assume a new aspect, when seen through the medium of feel- 
 ings produced by important events and a novel situation. 
 Like many others, I had been content to sit at the feet of 
 the learned doctors of our law, and accept their interpreta- 
 tion as correct. But the war has shed new light on the 
 principles and meaning of our Constitution, and revealed in 
 it imperfections, perhaps also powers, scarcely perceived by 
 its makers, and hidden from the superficial and unsuspecting 
 glances of the people, during our long period of prosperity 
 and peace. 
 
 I yielded with reluctance to the reasoning, by which some 
 of the opinions asserted in this book are, in my judgment, 
 sustained. If that reasoning can be refuted, no one will be 
 more gratified than myself I off'er my views to the public 
 Avith unfeigned diffidence. I consider it a duty to ofter them. 
 because, if true, they are important; and I believe them to 
 be true. I do not advocate, I state them. Eeason looks for 
 truth only, not expediency; well knowing that what is false 
 cannot be expedient; well knowing, too, that a Government 
 founded on falsehood, cannot endure. What is false in uni-
 
 PREFACE. Vli 
 
 Constitution, or in the interpretation of it, should he i^ot i-i<l 
 of J for thus only eiin it be preserved. 
 
 The flight of events is now so rapid, that he wliu \vishe^ 
 to influence opinion must speak quickly, and <aiiii(>t there- 
 fore bestow much time on careful and artistic exi-ciitiou. 
 This work was begun in February last, and coinpieted in 
 October, — a period long enough for one of larger size, liad 
 not the writing of it been frequently interrupted. Besides 
 its other faults, it has some, therefore, attributahU- to 
 haste, — redundancies, repetitions, perhaps some mistakes in 
 facts and references. For these I crave the indulgence ot 
 ray readers, should I be lucky enough to have any. If tlie 
 book contains any substance of truth, inelegance of form 
 may be forgiven. 
 
 November 22, 1862.
 
 CONTENTS. 
 
 Preface, 
 
 CHAPTER I. 
 
 A WRITTEN CONSTITUTION. 
 
 Government is a machine for imposing rules of conduct — Its only safe 
 foundation is custom — An unwritten Constitution — A written 
 Constitution — Ours young in time and experience — Was una- 
 voidably a written Constitution — Its framers retained what they 
 could of the English Constitution — The difficulties of their task — 
 The materials they possessed — A new Government must combine 
 old things with new — A Government of limited powers — Altera- 
 tions of the English Constitution, how made — How made in 
 ours — The Fifth Article — Difficulty of applying it in practice — 
 Changed condition of the country since the Constitution was 
 made — Alterations of the Constitution require knowledge and 
 intelligence higher than the masses possess — Restraints on the 
 power of the English Parliament — The present war illustrates 
 the difficulty of applying the Fifth Article — Cannot the Constitu- 
 tion be altered otherwise than by the Fifth Article ? — The Con- 
 stitution has not prevented civil war — How can the difficulties 
 created by the war be met ? — Not by the Fifth Article — There 
 cannot be a Government with limited powers — Internal checks 
 to the power of Government — Changes may be made in the Con- 
 stitution with the approbation of the people— The restraining 
 power of the Judiciary in our system — Under a written Constitu- 
 tion, two questions arise : What is the law ? and Does it conform
 
 CONTENTS. 
 
 to the natural law of all Governments? — The second question 
 considered first — Government is the means of applying the su- 
 preme power of the people to make laws — Power which the people 
 cannot use, they do not possess — The only power they can use is 
 that of dismissing their public agents — Should all branches of the 
 Government unite to alter the Constitution, there is no legal 
 remedy — Congress would be omnipotent, but for the alleged 
 check of the Judiciary — Can the Judiciary apply such a check ? 
 — Power is the ability to do something, or cause it to be done — 
 Can the Judiciary exert a control over the Legislature and the 
 Executive ? — Not if it be weaker than they — It is useless to dele- 
 gate power that cannot be exerted — The weakness of the Judi- 
 ciary — The Legislature must be supreme in a popular Govern- 
 ment — Our Government has not the stability of the English — 
 What are the defects of our Constitution ? and what the remedy ? 
 are problems presented by the war — Changes demanded by the 
 people ought to be made by Congress — The want of undisputed 
 power by Congress the difficulty — Constitutional questions never 
 settled — Case of Dred Scott — False doctrines — Powers necessary 
 to the Government illustrated by the rebellion — A Judiciary can- 
 not be a check on the Government — It cannot exert political 
 power — What is the duty of the Judiciary in case of an alteration 
 of the Constitution, intentionally made by the Government with 
 the assent of the people — Authorities — A supposititious judicial 
 opinion — Another — Power and duty of the English Judiciary — 
 Of ours — The war may cause changes in our Constitution — How 
 can they be made ? — Implied powers of Government — Necessity 
 of ascribing supreme power to Government, . . . .17 
 
 CHAPTER 11. 
 
 UNION. 
 
 Our Constitution partly new and partly old — The English Govern- 
 ment the model of ours, so far as circumstances permitted — On 
 all questions we should therefore ask first, what was the English 
 law ? — Nothing new in the American Union — A pattern for it
 
 CONTENTS. xi 
 
 existed in "The United Kingdom," and in the relation of the 
 British Colonies to the mother country — Love of local power a 
 characteristic of the Saxon race — The British Union — Conquest 
 of the Islands by the Saxons — By the Normans — Qualities of 
 race explain English history — The ruling principle of the En- 
 glish Government is central combined with local power — Ireland 
 — Its conquest and union with England — Scotland — Its indepen- 
 dence and union with England — Similarity between the Act of 
 Union with Scotland and our Constitution — What is the law of 
 the English Union with Scotland and Ireland ? — What is the law 
 of the English Union with the Colonies? — Resistance of the 
 American Colonies to the Government — The principle involved — 
 The Imperial power of Parliament — Why our ancestors withdrew 
 from the British Union — That Union their model when they 
 came to make one for themselves — What is and must be the law 
 of the American Union? — Union of the Colonies before Indepen- 
 dence — The Confederation — Its defects — A Convention appointed 
 to make the Constitution — Necessary powers of the Government 
 to preserve or dissolve the Union — Constitutional provisions — 
 Bishop Warburton on the nature of an incorporate Union — 
 Whatever power be ascribed to the Government, it is always 
 under the control of the States and the people — Power of the 
 Government under the Constitution is adequate to the exigencies 
 of the Union — It has power to preserve or dissolve it— The ex- 
 tent of the country forbids the hope of a perpetual Union— How 
 it may be dissolved by consent and the permission of the Govern- 
 ment — The right of secession— Power of the Government to per- 
 mit and regulate secession— Power of the Government to expel 
 a State from the Union— Utah— Civilization depends on race— 
 The Saxon race and civilization do not flourish in the South — 
 In the South we have the black race— Its influence on civilization 
 —A time may come when Union with the South will be impossible 
 
 The Government must have power to exclude the South from 
 
 the Union— The rebellion— The objects of the war on the part of 
 the Government are the vindication of its authority, and the resto- 
 ration of the Union— What the Northern people may choose to 
 do— The Government must have unlimited power, or give place
 
 xii CONTENTS. 
 
 to anotlier which has — Summary of the conclusions of this and 
 the preceding Chapters, 99 
 
 CHAPTER III. 
 
 EXECUTIVE POWER. 
 
 The Executive branch of our Government a novelty — The English 
 Executive — Its essential feature subordination to the Legislature 
 — The war is testing the Executive power of the Constitution — 
 Two questions have arisen : What is the power of the Govern- 
 ment to defend the public safety? and What security does the law 
 afford to personal liberty ? — Suspension of the Writ of Habeas 
 Corpus by the President — Discussions to which it has given rise 
 — Which department of the Government has authority to suspend 
 the privilege of the Writ ? — What is the English law ? — What is 
 the American law? — Analogy between English and American 
 Executive power — The President has not exclusive right to sus- 
 pend the privilege of the Writ — Authorities — Statement of the 
 law, English and American — Conduct of Mr. Lincoln in suspend- 
 ing the Writ — His Message to Congress on the subject — Duty of 
 Congress — What ought to be the law — Other elements of the Ex- 
 ecutive power of our Government yet to be tested by time — The 
 position of a British Monarch, and his functions — The hereditary 
 principle — Dangers of an election of the President by the people — 
 The ballot-box the American substitute for the hereditary princi- 
 ple — The American Executive power tested by the war — Diffi- 
 culty of making a good selection by a popular vote — Position of 
 the English Ministry — The mode of electing a President provided 
 by the Constitution — Its failure — Executive patronage — Nomi- 
 nating conventions — The proper organization of Executive 
 power a problem yet to be solved by the American people, . . 202
 
 CONTENTS. • Xm 
 
 CHAPTER IV. 
 
 SLAVERY. 
 
 Slavery and the slave trade novelties in our Constitution — The negro 
 race flourishes in the South — Has become the foundation of 
 Southern society — The Union could not have been made, unless 
 slavery and the slave trade had been protected by the Constitution 
 — They were accepted with reluctance by the Convention — Th.e 
 founders made a mistake — Disastrous consequences of that mis- 
 take — The Convention expected slavery to pass away — Why their 
 hopes were disappointed — Nature of the negro race — Its influence 
 on the white race — Cotton — Rise of opinion against the slave 
 trade — -Against slavery — Growth of the Abolition party — The 
 South alarmed — Its plans of resistaiijce — They all fail — Secession 
 — The North roused — Civil war — Mistakes of the South — Slavery 
 was safe in the Union — The Constitution on its trial with refer- 
 ence to slavery — What shall we do with slavery? — Emancipation 
 as a war measure — Conduct of the Democratic party in relation 
 to the war — "The Union as it was" — Prevailing sentiment of the 
 Northern people — The Government now in a position similar to 
 that of the founders of the Constitution — The Sphinx's riddle — 
 Any settlement of the slavery question must satisfy justice for the 
 
 negro, the rights of the Southern people and the moral sentiment 
 
 ... * 
 
 of the Northern people — True position of the negro race in the 
 
 • 
 
 South — Not that of merchandise — The place assigned to it by the 
 
 Constitution — Rights of the Southern people in relation to the 
 negro race — The Northern people must participate in its govern- 
 ment — The demands of Northern opinion on the subject — The 
 President's plan of gradual emancipation by the aid of Congress — 
 Abolition of slavery in the District of Columbia — Prohil^ition of 
 it in the Territories — These measures opposed by the Border 
 Slave States and by Northern Democrats — Moral influence of the 
 President's proposal — It does not reach the root of the evil — The 
 . principle that men are property is false — There can be no peace 
 or Union till it be taken out of the Constitution — The fugitive 
 slave law — Why has the negro race power over our destiny? — The 
 President's plan of gradual, compensated emancipation cannot
 
 xiv CONTENTS. 
 
 be executed — Emancipation by the Government without compen- 
 sation would be unjust — "The Union as it was" impossible — A 
 plan suggested for gradual emancipation — Constitutional diffi- 
 culties — Weakness of the Government — The plan proposed might 
 be carried out according to the Constitution, .... 26!) 
 
 CHAPTER V. 
 
 ^ DEMOCRACY. 
 
 No Democracy in the Constitution — The Slave States virtually aristo- 
 cratic and oligarchic — Have no resemblance to European aristoc- 
 racies — Decay of the Southern gentry — Increase and triumph of 
 Democracy in the North — Elements of Northern society — The 
 Constitution has failed to prevent civil war — The antagonism be- 
 tween North and South because of slavery produced the war — 
 The Missouri Compromise — Why it was violated — Consequences 
 of the attempt to force slavery into the Territories — These con- 
 sequences caused the war, and were under the control of the 
 leaders of the Northern Democracy — Why did Northern Demo- 
 crats unite with the South to repeal the Missouri Compromise? — 
 And to force slavery into Kansas? — Why did not the Constitution 
 prevent the war? — Slavery not alone the cause of the war, because 
 the power of slavery depended on its alliance with a Northern 
 party — Abolitionism did not cause the war — Its true character-^ 
 Southern attacks on Northern rights gave strength to the Aboli- 
 tion party — The Northern people have never been Abolitionists — 
 The Republican party was created by the repeal of the Missouri 
 Compromise and by the aggressions of the South in Kansas — 
 The Republican party never meant to attack slavery as a 
 Southern institution — Mr. Seward and Mr. Lincoln — The party 
 of Mr. Bell — Democracy, as permitted by the Constitution, now 
 on trial — Our troubles caused either by want of intelligence in 
 the people or defects in the machinery of the Government — The 
 dangerous element that caused the war is in the Democratic 
 party — It was divided by the exactions of the South — Mr. Doug- 
 las — Social distinctions do not, in this country, form the dividing
 
 CONTENTS. XV 
 
 lines of parties — Democracy in the European sense does not 
 exist here — The Celtic race — The Germans — The dangerous 
 elements of American society belong to the Democratic party — 
 Equality of condition causes the formation of parties — Obedience 
 to party discipline — The party that contains the most ignorance 
 and poverty will be the most submissive to party rules — Analysis 
 of American society explains the cause of the war — Alliance of 
 the South with the Democratic party — The war caused by a small 
 minority of the people and by political leaders — The sway of 
 demagogues — Liberty always in danger during periods of tranquil 
 prosperity — The North was gradually falling under the bondage 
 of slavery and Democracy — The Union valued for the sake of its 
 material benefits — Abolitionism the only moral element left in 
 our politics — Subserviency of Northern opinion to slavery — The 
 spell broken by the fall of Fort Sumter — The war caused by the 
 politicians and not by the people, even in the South — This fact 
 proves a defect in the machinery of Government — Nominating 
 Conventions — The low character of public men and universal 
 corruption caused by them — The moral and intellectual standard 
 of the Government below that of the people — The intelligence of . 
 the people avails nothing if it cannot be applied because of de- 
 fects in the Government — Electoral methods — Lessons of the 
 crisis — What is Democracy ? — Effects of equal and universal 
 suflfrage — Power of the people cannot be applied without suitable 
 machinery — DifiBculty of constructing a Government — Nomi- 
 nating Conventions should be regulated by the Government — 
 Changes likely to be caused by the war — Is the power to cope 
 with the difiBcult questions to arise granted by the Constitution? 
 — Can they be disposed of by universal suffrage and nominating 
 Conventions ? — The war has developed the intelligence and force 
 of the Northern people — They must always live under free in- 
 stitutions, 318 
 
 APPENDIX. 
 
 NOTE. 
 The President's Proclamation of September 22d, 1862, . . . 361
 
 THE 
 
 TRIAL OF THE CONSTITUTION. 
 
 CHAPTER I. 
 
 A WRITTEN CONSTITUTION. 
 
 Government is a machine for applying principles and im- 
 posing rules of conduct essential to the well-being of a people. 
 The machine is very simple or very complex, according to the 
 needs and capacity of the 'people ; and it varies with these, 
 through all forms, from the chieftainship of a savage tribe up 
 to the highly artificial structure of an English or American 
 constitution. It varies, also, to supply wants created by the 
 progress which a nation makes, upwards or downwards, to 
 higher or lower planes of civilization, and is always " becom- 
 ing" something that it was not ; its "real being," to use Plato's 
 lano-uacre, consistincr of the idea or truth it is intended to mani- 
 fest and execute. 
 
 But the machine called Government, or improvements in it, 
 are not easily invented, and when invented are difficult to get 
 accepted by the people or put in operation. Forms, therefore, 
 should not be rashly altered ; and the only safe foundation for 
 government is custom — another name for experience — the best 
 guide in temporal affairs. No man or assembly of men is wise 
 as the generations or as time, for time reveals imperfections, 
 and the thouo-ht of those who feel' them is set to Avork to 
 remedy them as they arise. Therefore Lord Coke says, " If 
 the reason that is dispersed into so many several heads were 
 
 2
 
 18 THE TRIAL OF THE CONSTITUTION. 
 
 united into one, yet could he not make such a law as the law 
 of England is ; because by many successions of ages it hath 
 been fined and refined by an infinite number of grave and 
 learned men, and by long experience grown to such perfection, 
 for the government of this realm, as the old rule may be justly 
 verified of it, neminem oportet esse sapientorum Jcgihus ; no 
 man (out of his own private reason) ought to be wiser than the 
 law, which is the perfection of reason." 
 
 The meaning of this is, not that the law has attained or can 
 attain ideal perfection, but that the reason of the people is 
 always employed in perfecting it to suit the demands which 
 are made by time, so that the law grows with the mental 
 growth of the nation, and fits its shape and stature always, — 
 thus imitating, in its changes, time itself, which, as Lord 
 Bacon says, " innovateth greatly, but quietly and by degrees, 
 scarcely to be perceived." 
 
 Indeed, it is philosophically true that all law, in the long 
 run, is and can be nothing but custom. A statute is a decla- 
 ration of an old right or a new want. If it supplies the one 
 or guarantees the other, it survives, and, Avith its constructions 
 and the practice that grows up under it, becomes custom or 
 common law. If it serves neither of these ends, it is repealed 
 or amended, or becomes obsolete, or is bent or twisted by the 
 courts and the people to suit the needs of the hour, until, by 
 judicial legislation and the action of public opinion, it is made 
 to mean something which perhaps those who wrote it never 
 intended. So it is with political or constitutional law. It is 
 either immemorial custom, as in England, or a written consti- 
 tution in the nature of a statute, altering custom to suit a 
 change of circumstances, or to provide security for violated or 
 newly-acquired rights. 
 
 A revolution is usually the occasion which gives birth to 
 alterations in constitutional law, or to renewed guarantees for 
 endangered rights. Should the ncAv constitution prove ade- 
 quate to the wants and satisfy the wishes of the people, it is 
 cherished as their chief blessing and richest inheritance. Suc- 
 ceeding generations are taught to regard it Avith love and reve- 
 rence, and it becomes, after a time, custom or common law,
 
 A WRITTEN CONSTITUTION. 19 
 
 wliich. grows and flourishes in the genial soil of popular affec- 
 tion, grasping the earth with its roots, and spreading above its 
 sheltering canopy. Such were the three organic acts of the 
 British Government: Magna Charta in 1215, the Petition of 
 Right in 1645, and the Bill of Rights in 1688, — neither of 
 them the invention of any man or set of men, neither of them 
 professing to create new rights, but each proclaiming itself a 
 fresh and solemn declaration of ancient law and custom. 
 
 These, therefore, have flourished through the centuries, and 
 are yet green and growing. The Constitutions that were the 
 offspring of the French Revolution, — the creations of ingenious 
 men undertaking to provide for the future whilst disregarding 
 the past, — perished with the hour that produced them. Their 
 authors thought themselves wiser than the law, wiser than 
 time. Their elaborate machines, with their cunningly-con- 
 trived checks, balances, wheels, and springs, would not Avork. 
 Events, and the genius of the French people, have made a 
 different sort of Constitution for France. 
 
 So entirely is a constitution the outgrowth of the character 
 of a nation, as influenced by circumstances, that no man or set 
 of men, convened for the purpose, can provide fully for the 
 wants of the future. These must be met and satisfied by the 
 men of the future ; and they will either abolish a plan of go- 
 vernment that does not suit them, or alter it until it does : for 
 a government is for the people, — hot the people for a govern- 
 ment, — which must be, not a fetter, but a dress, — giving pro- 
 tection, but permitting easy and free motion. The less there 
 is in it that is ncAV, the more likely it is to be permanent. But 
 its character can hardly be considered established until it has 
 been tried by prosperity and by adversity, for it was intended 
 for both. When it has stood the strain of poverty and wealth, 
 of obedience and treason, of peace and war, foreign and do- 
 mestic, and under it the nation has grown constantly in power 
 and civilization, such a government, like a mountain hoary 
 with age, yet covered anew with young life, — like a river ever 
 full and ever flowing towards the ocean of the future, and ever 
 bountiful of benefits, — ceases to be regarded as the work of 
 man. Nature adopts it gladly into her race, and gives it rank
 
 20 THE TRIAL OF THE CONSTITUTION. 
 
 Avith Andes and Ararat, with the Nile and the Mississippi. 
 Such was the Constitution of the great Indian Empire which 
 flourished for thousands of years before our anti(juity began ; 
 such that of Rome, the fountain of modern European law ; and 
 such is the Constitution of England. 
 
 It is an unwi'itten Constitution, by which is meant the cus- 
 tom of the nation in organic law, to be gathered from acts of 
 Parliament, the practice of the Government, historical pre- 
 cedents, and the decisions of the courts. A written constitu- 
 tion is one constructed by one man or an assembly convened 
 for the purpose, granting and distributing political power, and 
 providing securit}^ for personal rights. It has two inherent 
 defects, — it cannot adequately provide for the future, and its 
 meaning is necessarily uncertain. No man or convention, or 
 single generation, can furnish wisdom and knowledge to foresee 
 all exigencies that may arise, and supply the needed powers to 
 meet them, and it is impossible to use language, so clear and 
 explicit, as to exclude doubt as to the meaning, often, of the 
 most important clauses. Every English statute cost thousands 
 of pounds in litigation before its construction was settled, and 
 an eminent counsel once said, that he could drive a coach and 
 six through any that could be written. But there is no doubt 
 about a custom, an immemorial usage, which time and habit 
 have impressed upon all minds. 
 
 Whilst, therefore, every statute gives rise to disputes about 
 its meaning, the difficulty in administering the common law, is 
 not in the law but in its application to facts. For this reason 
 the idea of codifying the laAv has been generajly abandoned, 
 as likely to cause more uncertainty than it can prevent, and 
 reliance on precedent is preferred, however cumbrous its mass 
 must become in time. After a certain period, leading cases 
 are eliminated, Avhich embody principles, and the undergrowth 
 perishes, for time destroys what it does not need ; as a forest 
 is thinned by the nature of the soil. A code must still be 
 construed, and each construction becomes a precedent. A 
 new crop of precedents is thus produced, not out of the past, 
 but out of the brain of the codifier, and what that crop will be,
 
 A WRITTEN CONSTITUTION. 21 
 
 no one can tell; as when a wood is cut down, no one can toll 
 what sort of trees wUl grow in its stead. 
 
 The Constitution of this country is _yet young. It is young 
 in time, for it is less than a centui-y old ; it is young in expe- 
 rience, because it has not gone throuo;h the testina; trials of 
 great dangers. It Avas unavoidably a written Constitution. 
 It was the creature of events that made it necessary to com- 
 bine new things with the old, and to provide for a future that 
 must be different from the past. The condition of the people 
 was changed suddenly, and for that reason so was their go- 
 vernment. The stream of precedent was rudely stopped, and 
 for the gently moulding touch of time was substituted the 
 constructive hand of experiment. Not rashly or hastily was 
 the work done, but prudently and anxiously, by men who 
 brought to its performance great abilities, much learning, long 
 experience, and, above all, a pure and lofty purpose. But 
 they were men, and no match for the centuries. They were an 
 assembly called fi'om the fleeting present, and not so wise as 
 the generations of the past. Shall we wonder, should it hap- 
 pen, that they were not so Avise as the generations of the 
 future ? They gave at least one proof of w^isdom by showing 
 their reverence for the past. Unlike the constitution-mon- 
 gers of the French Revolution, what they could retain of its 
 inherited treasures they did. 
 
 Those treasures Avere such principles of the English Consti- 
 tution as Avere consistent Avith the circumstances of the Ameri- 
 can people. The law is the birthright of an Englishman, and 
 Avherever he plants a colony, he carries it Avith him, so far as 
 it is applicable to the colonial state. The colony is deemed a 
 part of the ancient dominions, and the subjects inhabiting 
 them retain their former rights and privileges.* The first 
 attention of the colonists of Ncav England Avas directed to the 
 establishment of " the free liberties of freeborn English- 
 men," and they proceeded to declare their rights and funda- 
 
 * 1 Storv on the Constitution, | 103-110.
 
 22 THE TRIAL OF THE CONSTITUTION. 
 
 mental laws, almost in the language of Magna Charta.* 
 Tlieir example was generally followed by the other colonies, 
 so that up to the time of the Revolution, the laws and cus- 
 toms of England prevailed among them not only because they 
 were subjects of the British Government, but by the free 
 choice and acts of the people. Under these laws they lived 
 until the formation pf our Constitution; for the government of 
 the Confederation and the attempts at a Union which preceded 
 it, did not affect the rights of the people, as they did not act 
 on individuals, but on States, and by means of their authority. 
 It was found that union was indispensable to safety, and that 
 a compact or league of sovereign communities was not a 
 union, neither was it a Government, because it was deficient 
 in power to enforce its own laws, and a Government that could 
 make itself obeyed and respected was as necessary as union. 
 
 The difficult task, therefore, imposed by the Revolution was 
 to transfer to a new Government of the Union, the control 
 over persons and things, for national purposes, which had been 
 exercised severally hj the Colonial Governments, without en- 
 croaching upon the proper independence of the Colonies, or 
 States, as they became under the Constitution, and at the 
 same time, to preserve to the people all the civil rights and 
 liberties they had enjoyed as British subjects. 
 
 The first object Avas obtained by clothing the new Govern- 
 ment with power to execute its laws by its own courts and 
 officers, and these laws, together with the Constitution, Avere 
 declared to be supreme over tlie Avhole country, and over the 
 Government of the States. The second Avas provided for by 
 limiting the authority of the Federal Government to national 
 and general objects. It Avas to represent the Avliole nation, and 
 Avas, therefore, to act only upon the interests of the Avhole. 
 To secure the precious inheritance of English freedom and its 
 principles, and the guards by Avhicli they had been protected, 
 Magna Charta and the Bill of Rights were copied, and the 
 trial by jury and the habeas corpus made parts of the Con- 
 stitution. In these objects the chief difficulty was the combi- 
 
 * 1 Story on the Constitution, | 59-163.
 
 A WRITTEN CONSTITUTION. 23 
 
 nation of national sovereignty with the independence of the 
 States, of local and general power, the creation of a har- 
 monious Avhole, to be at the same time a nation and a con- 
 federacy. 
 
 The pressing wants of the time could only be supplied by a 
 new Government, and none existed that would supply them. 
 A new Government, contrived by somebody, to satisfy the 
 present need, and also, if possible, to provide for the future ; 
 that is to say, a written Constitution had become a necessity. 
 The people were convinced of this, and as they could not 
 possibly make a Government for themselves, they chose a 
 Convention, composed of their wise men, to make one for them, 
 to contrive a machine by which the objects above stated, of 
 National Union and of private liberty, could be practically 
 obtained for themselves and their posterity forever. 
 
 The Convention had before them a certain quantity of old 
 material, valuable because it was old and tried, whick they 
 could work up. They had the Articles of Confederation, 
 some of which had proved useful ; the charters, laws and con- 
 stitutions of the Colonies, the common law of England and the 
 general principles of the English Constitution in relation to 
 the nature of political power, its distribution among several 
 departments, and the appropriate functions of each. They 
 used all these liberally and discreetly, but still the effective 
 machinery was wanted to endoAV the principles with life and 
 activity. The Convention had not " King, Lords and Com- 
 mons," and were obliged to invent something to supply their 
 place. In performing this task, they were led, naturally and 
 necessarily, to adhere, as closely as circumstances would 
 permit, to the English model, because it was a good one, and 
 because they were Englishmen and had recently been English 
 subjects. 
 
 But the Convention were obliged to serve two masters, first 
 their own idea of what was best, and secondly the people, who 
 had recently been at Avar with England, whose passion for 
 liberty was at the time excited beyond its ordinary state, who 
 were to pass upon the Constitution, and would probably reject 
 it if too conservative or too English for their taste. The
 
 24 THE TRIAL OF THE CONSTITUTION. 
 
 invention or creation, moreover, of an entirely new system of 
 Government is a superhuman undertaking, never yet at- 
 tempted Avitliout signal failure, if indeed it ever was attempted, 
 except in Utopias of Philosophic dreams. A government to 
 work well in practice must accord not only with new circum- 
 stances but with old ideas and must, therefore, be partly new 
 and partly old, and more of it must be old than new, for the 
 ideas of the past outnumber those of the present. Our ances- 
 tors, therefore, followed the English model as closely as they 
 dared, not perhaps as closely as they wished. The Judiciary 
 is entirely English in most of its features. The Legislature is 
 composed of two houses like the English Parliament. The 
 House of Representatives is substantially the same as the 
 House of Commons, and the Senate in its limited number, in 
 its longer term and mode of appointment, has some faint 
 resemblance to the House of Lords. It is the conservative 
 feature of the Government to represent the States as such, 
 and was intended to exercise a restraining influence upon 
 the House, which being elected directly by the people, is 
 more under the influences of popular passion. The hardest 
 problem was, how to manage the Executive power inherent in 
 every Government, and in constructing this, the Convention 
 departed most widely from the English system. Hereditary 
 royalty was not to be thought of, and yet they were obliged 
 to confer royal power. A new machine to contain and apply 
 it must therefore be contrived, and they did contrive one, 
 unique in its character ; the success of which is yet doubtful. 
 
 In another important particular the Avork of the Convention 
 is generally thought to difi"er from the English pattern. They 
 constructed a Government whose powers, it is said, are limited 
 by law. Supreme power, the eminent donuiin, must of course 
 in every country reside in the people; but in England the 
 whole of it is delegated to the Government, which has no 
 legal fetter on its action, but is theoretically "omnipotent," 
 though the right of revolution or the right of resistance to 
 oppression or injustice or to an attempt to destroy the ancient 
 laws and liberties of the people, impliedly remains with 
 them, of necessity, for it is a natural right. But by our
 
 A WllITTEN CONSTITUTION. 25 
 
 system the people are supposed to have intrusted tlie Govern- 
 ment with a part onl}^ of their power. It is provided that 
 "the powers not delegated to the United States by the Con- 
 stitution, nor prohibited by it to the States, arc reserved to 
 the States respectively or to the people;" that is to say, the 
 powers not prohibited to the States are reserved to them, and 
 the powers not conferred on the Government are reserved to 
 the people. 
 
 Among the powers thus reserved to the people is that of 
 altering the Constitution in the manner prescribed by itself. 
 In England the Constitution may be altered by Parliament. 
 Here, organic changes in the Government, according to 
 received opinions, can be made only by a convention elected 
 for the purpose, and in an appointed manner, by the people ; 
 there, they can be made by an assembly also elected by the 
 people, and for the same purpose, since it has the same power. 
 In both cases the resort is to the people — that is to say, to 
 popular opinion requiring a change. The difference is that in 
 England the whole power of the people is delegated to Par- 
 liament, and the power, therefore, is always ready for action, 
 whilst with us it can only be made available by a difficult and 
 uncertain process, slow, though prompt measures may be 
 important, and uncertain in its results, because the consent of 
 three-fourths of the States or of the people, is necessary 
 before an alteration can be made. The English organic law 
 is the custom of the Government. It is in no danger of sud- 
 den and great innovations, for it is the nature of custom or 
 habit to change slowly. It is also its nature to be constantly 
 changing, according to the age, circumstances, and mental 
 condition of an individual or a nation. Safe and gradual 
 change may therefore be predicated of the English Consti- 
 tution, and such in fact has always been its characteristic. 
 
 But how can our Constitution be altered when alteration is 
 necessary ? It is a code, partly of old and therefore custom- 
 ary law, but partly and largely of new contrivances. The 
 new portions, where doubtful in their meaning, must be con- 
 strued, and therefore may be moulded by the practice of the 
 Government and by the Courts, and thus to that extent the
 
 26 THE TRIAL OF THE CONSTITUTION. 
 
 Constitution may be altered by the usage of the Government, 
 as it has been. The Government is one of limited, but also 
 of implied powers,* and this affords a certain latitude for 
 needed change. But the exigencies of the future may require 
 great and organic changes ; the best opinion of the country 
 may demand them, a majority of the people may demand 
 them, and the necessity for them may be obvious to all men 
 able to think upon the subject, which nevertheless may not be 
 three-fourths of the people or of the States. Where, then, is 
 the remedy ? If amendments to the Constitution are really 
 necessary they will be made. But the conditions imposed by 
 the Constitution require, first, that two-thirds of both houses 
 of Congress, or the Legislatures of two-thirds of the States 
 shall propose amendments, which must be ratified by the 
 Legislatures of three-fourths of the States, or by conventions 
 in three-fourths of them. 
 
 It will be difficult to satisfy these conditions, yet necessary 
 changes in the organic law must be made. On the other hand 
 rash, ignorant, even fatal alterations, in times of popular ex- 
 citement, may be proposed and hurried through the consti- 
 tutional forms, by demagogues controlling the masses for a 
 time, and would thus become a part of the Constitution un- 
 alterable, even when found mischievous, except by another 
 doubtful and dangerous appeal to three-fourths of the States. 
 The provision in the Constitution for amending it has been 
 called a safety-valve to prevent the explosion of the passions 
 of the people in revolutionary violence. But the efficacy of a 
 safety-valve depends on the promptness with which it can be 
 opened and the width of its throttle. If defective in either of 
 these, when the pressure of steam is too high the boiler will 
 burst. 
 
 The English Constitution has been going through a constant 
 process of change for eight hundred years, dating from the 
 Norman conquest. All the changes have been beneficial, and 
 though some have been accompanied by violence, they have 
 all been made by Parliament. No convention for this purpose 
 
 * 1 Kent's Comm., 23G ; Story on Constitution, ^ 433.
 
 A WRITTEN CONSTITUTION. 27 
 
 has ever been elected by the people to exercise their reserved 
 power. Yet feudalism and Romanism have been abolished, 
 Plantagenets, Tudors, and Stuarts controlled, the prerogative 
 of the King diminished, the succession to the Crown altered, 
 the powers of the Legislature enlarged, the tenure of the 
 Judiciary changed, and the Avhole machinery of the Govern- 
 ment modified to secure the rights and liberties of the people 
 and to suit their growth and progress. Through all these 
 stormy centuries this machinery has worked well, because the 
 alterations have been skilfully made, as Lord Coke says, " by 
 an infinite number of grave and learned men and by long ex- 
 perience." The process is still going on. "Grave and 
 learned men " — the best minds of the nation — are now ponder- 
 ing the necessity for further change, what that change shall 
 be and how it can be safely and beneficially made. They 
 anxiously consult the indications of popular sentiment, though 
 they summon no conventions of the people. There is no ne- 
 cessity for these, as Parliament is intrusted already with the 
 whole power of the people, and is responsible to them. The 
 action of Parliament is therefore free ; members are not dele- 
 gates to register a foregone conclusion, but meet to deliberate, 
 to compare opinions, to gain light and knowledge. It is 
 almost impossible, therefore, that under the operation of the 
 principle of representation and of a free press, any changes 
 can be made not required both by the wants and the opinions 
 of the people, or that when made they will be resisted. 
 
 The Amendment Article in our Constitution has not pre- 
 served us from civil war, though the war turned on construc- 
 tion as to the power of Congress over the Territories. The 
 safety-valve did not work, and the boiler has burst. The 
 valve could not be opened, and had it been, would not have 
 let off the steam. The rebellion has tested and illustrated its 
 merits as a means of peacefully altering the Constitution. 
 
 The Convention were anxious to protect the Government 
 they had made from the rash spirit of innovation inherent in 
 a democracy. They therefore interposed barriers to restrain 
 it. But it is a spirit that cannot be restrained by any demo- 
 cratic means. A Government powerful enough to resist the
 
 28 THE TRIAL OF THE CONSTITUTION. 
 
 people, is not a democracy. Instead of a dam to back up 
 the rushing flood of passion, until it should acquire force 
 enough to sweep away all obstructions, it would have been 
 Aviser to make channels and conduits to give it easy and safe 
 vent. This part of the Constitution Avas new, and had, there- 
 fore, never been tried by experience. There is nothing like 
 it in the English model, or in any other model known to 
 history. Reserved powers of the people, dormant till roused 
 by a great crisis, then suddenl}'' evoked to deliberate in the 
 midst of a great crisis, on profound and difficult questions of 
 constitutional law and political science, surely this was a new 
 thing under the sun. It looks well enough on paper. This 
 Constitution of ours, thought the Convention, is a wise and 
 good one ; it should therefore be guarded and preserved with 
 vigilant care. But time may reveal defects in it that ought 
 to be remedied ; may create wants under it that must be sup- 
 plied. The Constitution, therefore, should be open to altera- 
 tions, but tliey should be made only after mature reflection. 
 To secure the requisite caution, the people must not be permit- 
 ted to vote directly upon proposed changes, but must act 
 through their representatives in Congress, or in the State 
 Legislatures, and through conventions chosen for the purpose. 
 Moreover, as the Constitution is the birthright of the whole 
 people, it should not be altered by a mere majority whicli may 
 be factitious, or gained by undue influence or the result of 
 transient public excitement. The interests, the opinions and 
 the feelings of a large minority might thus be unjustly disre- 
 garded, Avhich minority might be composed of a portion of the 
 people best entitled to respect. As the proposed alterations 
 may affect the rights of the States and their relations to tlie 
 General Government, they, as such, would in such a case, be 
 entitled to an influential voice, though the vote of a small 
 State would weigh as much as that of a large one. All tliese 
 points arc carefully met and provided for in Article Y of tlie 
 Constitution. 
 
 " The Congress, whenever two-thirds of both Houses sliall 
 deem it necessary, shall propose amendments to tliis Constitu- 
 tion, or on the application of tlie Legislatures of two-thirds of
 
 A WRITTEN CONSTITUTION, 29 
 
 tlic several States, shall call a convention for proposing 
 amendments, "which, in either case, sliall be valid to all intents 
 and purposes as part of this Constitution when ratified by the 
 Legislatures of three-fourths of the several States, or by eon- 
 ventio7is in three-fourths thereof, as the one or the other mode 
 of ratification may be proposed by Congress.'' 
 
 The Avhole value of this plan depends on its practical utility. 
 It sets in motion enormous forces. Can it restrain and guide 
 them ? Will they alloAV such a bit to be put into their mouths 
 at all ; or if they do, where is the arm strong enough to hold 
 them to the track when lashed to their speed? Questions 
 that involve State rights and popular rights, the power of the 
 people and the power of the Government, affect large interests 
 and excite strong passions. An impetuous and influential 
 minority may think itself endangered or aggrieved, a large 
 majority may demand a change, yet despair of obtaining the 
 requisite two-thirds of Congress or of the State Legislatures, 
 or a party controlling these, may refuse to take the initiatory 
 steps, doubtful of the result, and preferring to carry its mea- 
 sures by a vote of Congress. Yet that vote may be either a 
 criminal usurpation of power, or a modification of the Consti- 
 tution imperatively demanded by circumstances, and in either 
 case it is sure to be made a party question. It would be so 
 difficult to subject such a question to the process required by 
 the Constitution, that the process cannot be relied on. It 
 would fail when most needed, because then neither party 
 would appeal to it. If they refused, the question must be 
 decided by Congress, or not at all, and a decision by Congress, 
 when its authority is denied, settles nothing ; may, in a flagrant 
 case, justify resistance, and in any case affords incitements 
 and arguments to meditated and planned rebellion, which, 
 Avithout such show or reality of right might never have been 
 thought of. For clear, unquestionable authority is obeyed 
 even when severely exercised, whilst doubtful, disputed, or 
 manifestly illegal power is resisted on slight grounds, or even 
 only because it is illegal. 
 
 The obstacles therefore to be overcome, before the tribunal 
 contemplated by the Constitution for deciding upon amend-
 
 30 THE TRIAL OF THE CONSTITUTION. 
 
 ments to it, can be created, are so formidable, that they tend 
 rather to excite than to repress the spirit of revolution, whilst 
 they are not strong enough to resist it. In England, Parlia- 
 ment is a "convention to amend the Constitution," duly ap- 
 pointed, always in existence, and always competent to enter- 
 tain proposals for needed alterations, with full authority to 
 decide them. Possessed of undoubted poAver, Parliament is 
 likely to act with moderation and caution on a subject so 
 momentous, so surrounded by watchful intelligence, by great 
 interests and opposing forces, because any action at all implies 
 great responsibility. But in the conduct of governments as 
 of individuals, it is often only the first step that counts. A 
 government that is guilty of usurpation, has already thrown 
 off responsibility, and relied for success on other supports than 
 the law aifords. This is revolution ; and when a government 
 cannot be altered to satisfy the people, revolution is a neces- 
 sity.* It is a remarkable fact that in conservative England, 
 so steadfast in adhering to ancient usage, the power to make 
 changes is ahvays ready to act, without question or form or 
 delay, and the organic law is thus pliable and responsive to 
 the wishes of the people; whilst in democratic America, inno- 
 vation is guarded against with such jealous care, that it is 
 doubtful whether the means provided by law for making 
 needed changes can ever be employed. 
 
 It is also doubtful whether they can ever be used with suc- 
 cess, so trammelled are they with conditions and so dangerous 
 are they likely to be in action. The Constitution has indeed 
 been once amended in a legal manner. But this was proposed 
 by the first Congress that sat under it, composed in part of 
 the men who made it, and to satisfy the known wishes of some 
 of the States by which it was ratified. No popular excite- 
 ment was connected with the amendments, no partisan or sec- 
 tional interests or passions. They Avere, indeed, so nearly 
 contemporaneous with the Constitution as to be substantially 
 part of the original structure. The ratification of the amend- 
 ments was made under the same influences and in the same 
 
 * Storj on the Constitution, ^ 1827.
 
 A WRITTEN CONSTITUTION. 31 
 
 mood of tlie popular mind which had induced the acceptance 
 of the Constitution, and the whole was thus virtually one act. 
 There was, moreover, nothing in the amendments themselves 
 to divide opinion ; for, as all parties agreed, they were really 
 implied in the first plan. For these reasons, the fact that 
 they were peaceably adopted in the appointed mode is no test 
 of it, and gives no assurance of its future success. 
 
 The condition of the country has greatly changed since the 
 war of Independence. From three millions Ave have grown to 
 be thirty-four millions of people, and from thirteen to be thirty- 
 four States. Trade and manufactures have been created and 
 have flourished, and with them wealth has increased. These 
 have been gathered, for the most part, in the large towns, and 
 with them, also, masses of ignorant population ; so that the 
 cities, whilst they are the centres of activity, intelligence, and 
 capital, with all their influences increased by concentration, 
 are also centres of that power which is most dangerous in a 
 democracy. From the varied pursuits of the people, indicated 
 by natural causes, have arisen conflicting interests, and con- 
 trasted manners and social forms, in different parts of the 
 country. Slavery and the plantation have created, in the 
 South, ideas, habits and desires that distinguish it from the 
 North ; whilst the agricultural Northwest is scarcely less di- 
 vided from the commercial and manufacturing East. These 
 characteristics show, also, difi'erent stages of civilization. New 
 • England is the country of schools, colleges, towns, manufac- 
 tures, and concentrated population, where thought is active 
 and intense, because of universal education, general comfort, 
 diversified industry, and the collision of mind caused by easy 
 and constant intercourse. In the Northwest the people are 
 scattered on isolated farms over a vast expanse. They are in- 
 telligent and energetic, but rude and uncultivated — enthralled 
 by a single interest and occupation. The electric currents of 
 thought and knowledge do not freely reach them, and there- 
 fore opinion forms itself slowly, and lags behind the quick and 
 eager spirit of the East. In the South education is confined
 
 32 THE TRIAL OF THE CONSTITUTION. 
 
 to a small class, governed by a supreme influence and made 
 captive by a social system which directs all thought and en- 
 deavor to one idea and one policy. 
 
 The Government may press unequally on these powerful 
 sections, and may, justly or unjustly, resist their respective 
 demands. A change may be necessary, to allay discontent, 
 by yielding to reasonable wishes and thus prevent insurrec- 
 tion and civil war. Some contrivance is needed, by which the 
 mature and enlightened opinion of the people may not only act 
 on the measures of Government, but also alter the Constitu- 
 tion; for unless this can be done according to changing circum- 
 stances and opinions, physical force is the only resort. But 
 Avhat alterations to make and what will be their effect, are 
 difficult questions, of which not the many but the few are com- 
 petent to judge. They never have originated with the many, 
 but have always been the work of individuals, or of a very 
 small and select class. This is true of every change in the 
 British Constitution, and every part of its machinery, from 
 Magna Charta down to the Reform Bill. They were all intro- 
 duced, not by the people, but to meet their wishes and supply 
 their wants. They were never submitted to them for discus- 
 sion or decision, but were contrived and provided for them by 
 heads wiser than their own, and then adopted by them, be- 
 cause found to answer their purpose. 
 
 The average intelligence of the American people is very 
 high — far higher than that of any other in the world. They 
 can appreciate the benefits of good government, and can per- 
 ceive defects in it ; but it is quite a different thing to be able 
 to furnish a remedy. This requires mental power and culti- 
 vation of a higher order. The principles of government are a 
 science ; so also is jurisprudence, and so is constitutional law, 
 depending on both, and to be interpreted by the lights of both. 
 No small knowledge of each is required safely to alter the 
 Constitution. The multitude, rich or poor, do not possess the 
 knowledge. Few of them have ever read the Constitution or 
 know anything of the various questions that have arisen under 
 it, or the reasoning by which they have been settled. Informa- 
 tion of this sort is not the attribute of the many. No property
 
 A WRITTEN CONSTITUTION. 33 
 
 qualification, however liigli, would secure a class that possess 
 it. Neither are the masses capable of abstract thought, or 
 able to anticipate the tendencies and remote consequences of 
 changes in organic law. They are not very well acquainted 
 with history, nor can they read or understand Montesquieu, 
 De Lohne, Burke, Vattell, Kent, and Story. They can per- 
 ceive effects, but only when they happen*; they can judge of 
 the results of a law, but can rarely refer them to the true 
 causes. They know what they need, and can feel injustice 
 and oppression. They know the difference between anarchy 
 and order, betw^een poverty and prosperity, between corrup- 
 tion and honesty, between wise men and fools, between virtuous 
 men and villains ; but of these things, how to secure the good 
 and how to avoid the evil, they do not know. 
 
 They require liberty and security, but the machinery by 
 which these are attained, they cannot contrive, and even when 
 it is constructed for them, they can judge of it only by the 
 effects it produces. For example : an intelligent people de- 
 mands political power, or the privilege of influencing the 
 measures of government. But the difficulty is how to give 
 them this power, and to contrive some means by which they 
 can exercise it. This end has never yet been fully accom- 
 plished, only some app'roximation to it, by clumsy and ineffi- 
 cient means. The American people think they have got it, 
 because they have universal suffrage and. the ballot-box. Per- 
 haps they have only got a sham instead of a reality, and the 
 result of universal suffrage and the ballot-box has been, to 
 place their power beyond their control, in a few unworthy and 
 irresponsible hands. An intelligent people demand of right, 
 power, not only over the action of Government, but its form, 
 that it may be moulded to suit their wants and wishes. They 
 think they have got this power in the fifth article of the Con- 
 stitution. Perhaps it may turn out that the article, instead 
 of an instrument, as was intended, is an iron fetter, that must 
 be broke, before free action can be attained. 
 
 Unless connected with real grievances, abstract questions of 
 government do not interest the people. They are beyond the 
 habitual range of their thought, and they cannot be induced to-
 
 34 THE TRIAL OF THE CONSTITUTION. 
 
 entertain them or act upon them at all. Therefore, in quiet 
 times, appropriate to the consideration of the principles of 
 government, such topics cannot be discussed 'with any prospect 
 of securing such action as the Constitution requires. To put 
 its cumbrous machinery in motion, the people must be roused, 
 and as the most important organic changes are generally con- 
 nected with the interests of sections or of classes, the people 
 are very likely to be roused by them, to be divided into parties, 
 to be influenced by passion. They thus become a very unfit 
 tribunal to decide such questions, Avliich are not likely to be 
 tried on their merits. The contest would be for victory, not 
 for truth, a wide field and ample opportunity would be given 
 to the arts of demagogues, and how far the struggle would 
 go, and what would be its result, no one, at the beginning of 
 it, could predict. 
 
 Yet to such a tribunal does the Constitution submit organic 
 changes, and such a struggle does it invoke. First in Congress 
 or in the State Legislatures the question must be debated, by 
 which the alarm is sounded. Then it must be discussed before 
 the people, that a convention be elected. Then debated again 
 in that convention. Then again before the people or in the 
 State Legislatures. And all these operations are to be per- 
 formed by the same people and by the same leaders ; for lead- 
 ing party men would be the managers of the process through- 
 out. Why might not the subject be safely committed to Con- 
 gress, a body as much elected by the people as a convention, 
 and therefore, as likely to represent their wishes ? What is 
 the difference between the power of the people delegated to 
 Congress and the power of the same people reserved to them- 
 selves, except that the former is always ready to act when an 
 emergency makes it necessary, and the latter cannot act with- 
 out hindrances and delay. 
 
 Congress is more amenable to the control of the people tlian 
 the convention proposed by the Constitution is likely to be, 
 because the former is a permanent branch of the Government, 
 elected at short intervals, so that at every election it is sub- 
 jected to the popular conti'ol. The convention is, indeed, to 
 be chosen by the people, and its work to be submitted to them
 
 A WRITTEN CONSTITUTION. 85 
 
 for ratification. That done, however, the control of the 
 people, over the convention and over the subject, ceases. The 
 amendment once made, however injurious it may prove, is 
 irrevocable, except by another convention elected by the same 
 difficult forms ; for the reserved power of the people having 
 acted, returns to its prison and cannot again act, till sum- 
 moned in the appointed manner. Is not this power too much 
 hampered to be of use when most needed ? 
 
 In England Parliament wields the whole power of the na- 
 tion. But in England, as everywhere else, when the privi- 
 leges of the people are violated, and their wishes disregarded 
 by the Government, there exists the right of resistance, — a 
 right often exercised in English history, and therefore a cus- 
 tom and part of the unwritten law, undefined, unprovided Avith 
 legal means for its exercise, but denied by no one. This is 
 the reserved power of the English people, and it is always 
 ready for use, without being trammelled by forms, votes, con- 
 ventions, or ratifications. By its employment, at long inter- 
 vals, the English Constitution has grown up to its present 
 symmetry and strength. Coupled with the right of suifrage, 
 this implied and dormant power is a constant check on Parlia- 
 ment, whilst the unquestioned legal authority of Parliament 
 is a check on the people. They influence every measure 
 of Government through the press, the elections, and other 
 organs of opinion, whilst every law aifects the interests of 
 members of Parliament. These do not owe their influence in 
 the community to their seats in the Legislature, but are in the 
 Legislature because of their influence in the community, de- 
 rived from rank, birth, wealth, and character. Land, trade, 
 manufactures, and labor, are all represented in Parliament. 
 Identified thus with the great interests of every class of the 
 people, — informed of their sentiments, and controlled by their 
 votes, — no measure is likely to be adopted by Parliament in 
 opposition to their wishes, or in violation of their rights. Even 
 should this happen, they easily acquiesce, because they know 
 that errors or injustice can be remedied b}'^ another Parlia- 
 ment. The interests aff'ected by organic changes in Govern- 
 ment are so powerful in England, that changes cannot be
 
 36 THE TRIAL OF THE CONSTITUTION. 
 
 made unless really needed and demanded by the people, and 
 then they can be made by a safe and easy process. With iis, 
 the process is so diflficult that it can rarely be resorted to at 
 all, and so dangerous, that to use it would be only something 
 better than civil war, for it would be likely to provoke one. 
 It implies more intelligence, and more dispassionate calmness 
 of deliberation, than is or can be possessed by any people. 
 
 The terrible war that is noAV devastating a portion of our 
 country, and creating excitement and alarm over the whole of 
 it, affords an illustration of these principles. ]N^o power to le- 
 gislate for the Territories, in relation to slavery or anything 
 else, is expressly granted to Congress by the Constitution. 
 Its words are : " The Congress shall have power to dispose 
 of and make all needful rules and regulations respecting the 
 territory or other ijropertij belonging to the United States." 
 This clause received a construction almost contemporaneous 
 with the Constitution by the first Congress that met under its 
 authority, which prohibited slavery in all the territory then 
 belonging to the Government. 
 
 The pow'cr of Congress over the Territories was assumed as 
 implied, Avas afterwards constantly exercised both to permit 
 and to prohibit slavery in territories subsequently acquired, 
 and was regarded as supreme by every branch of the Govern- 
 ment, by the Courts, and by all writers of authority,, until a 
 recent date. The exercise of the power, on some occasions, 
 gave rise to serious disputes, but the existence of it was never 
 questioned. It was invoked and employed in a very signal 
 niaiiiicr to settle the contest between Nortli and South for the 
 control of the Territories, in the Missouri Compromise bill, by 
 which slavery was excluded from all the region north of a 
 certain line of latitude, leaving open the question of its ad- 
 mission south of that line, to be determined afterwards, as 
 Congress should think fit. By uniform practice, by judicial 
 decisions, by the formal consent of the nation, the language of 
 the Constitution, if vague, was thus construed, and the con- 
 struction became as much a part of it as if it had been ex-
 
 A WRITTEN CONSTITUTION. 87 
 
 pressly made so. Unless tliis rule be acloptcd, no law or con- 
 stitution can ever be settled. 
 
 The Southern people,' however, became alarmed at the in- 
 creasing power of the North, and at the growth of opinions 
 hostile to slavery. They fancied they could be safe only by 
 obtaining more political influence for slavery, and that this 
 could be done by creating more slave States. They, there- 
 fore, aided by their Northern allies, altered the Constitution 
 by an act of Congress which repealed the Missouri Compro- 
 mise, on the alleged ground that it was unconstitutional, be- 
 cause Congress had no power to interfere with slavery in the 
 Territories. The act was passed without consulting the people, 
 and Avithout any indication whatever that public opinion, North 
 or South, demanded a change. This high-handed proceeding 
 did not please the Northern people. It defeated the party by 
 whom it was executed, and caused the election of another and 
 new party, pledged to restore the law^ on its former basis. 
 But the South refused to submit to the decision of the ballot- 
 box. Rather than submit, they determined to break the Union 
 and overthrow the Government. They have attempted to do 
 both, and the result is war. 
 
 Could the Convention that made the Constitution have 
 foreseen the controversy to which the clause about the Terri- 
 tories has given rise, they no doubt would have been careful 
 to use language more explicit, as they would have done, 
 if gifted with a prophetic spirit, in other parts of the 
 instrument, the meaning of Avhich has since been, and will 
 be, disputed. But their human powers could not thus peer 
 into the future and foretell the trials to which their work 
 was to be subjected. Had the power been expressly given 
 to Congress to decide constitutional questions, its right to 
 govern the Territories would never have been disputed, 
 but would have been exercised according to the varying 
 wishes of the people. If exercised in a way to wound the 
 sensibilities or to injure the interests of a section, the excite- 
 ment thus caused would not have been armed with the idea 
 that the grievance was also an invasion of rights, — an idea 
 more apt to rouse passion and provoke resistance than losses
 
 38 THE TRIAL OF THE CONSTITUTION. 
 
 or even indignities. The probability is, therefore, that the 
 South would have submitted to the success of the Republican 
 party "without resorting to forcible resistance, just as the 
 North had submitted to the repeal of the Missouri Compro- 
 mise. Each would have felt that an undoubted legal power 
 had been exerted, and would have felt, also, that over that 
 power each had its fair share of influence or control. 
 
 But the power of Congress Avas denied, and the South would 
 not submit. Why, then, was not the machinery provided by 
 the Constitution to amend it, to declare its true meaning, and 
 thus to avoid civil war, used for that purpose? The reserved 
 powers of the people were ready, indeed eager, to act on the 
 question. They were, it is true, fastened up in their prison 
 house, but there was a key provided which could unlock the 
 door and let them out. How did it happen that no one 
 thought of using that key ? The reason is evident. Each 
 party Avas afraid of the reserved powers, not knowing which 
 they might attack. Indeed, neither party could get control 
 of the key, so carefully was it guarded. Neither North or 
 South could have secured a vote of two-thirds of Congress or 
 of two-thirds of the States, to propose an amendment to the 
 Constitution, or to call a convention for that purpose. Nor 
 could such a convention have made a settlement of the ques- 
 tion at issue, that would have been ratified by three-fourths of 
 the State Legislatures, or of the people. A reference to such 
 a convention was, therefore, useless, and neither party would 
 have consented to it. The South, because it would have been im- 
 possible to attain its objects ; the North, because it had the power 
 of carrying its point without trying a doubtful experiment. 
 
 For these reasons the means provided by law for making 
 important alterations in the Constitution are not likely to be 
 enq)h;yed with success, or indeed at all. Yet changes may 
 be rendered necessary by the war. If so, they will be made. 
 A Government that cannot supply the Avants, satisfy the in- 
 telligence, or accomplish the objects of a people so eager, so 
 impulsive, so educated as ours, cannot be permanent. What- 
 ever power is essential for these purposes, the Government 
 must possess ; Avhatevcr part of its machinery cannot perform
 
 A WRITTEN CONSTITUTION. 39 
 
 its functions, must be altered. A fixed, unchangeable Go- 
 vernment, for a changeable, advancing people, is impossible, 
 and Avere it not so, would be a sad spectacle. Scarcely less 
 so, however, is a Government so contrived that neither the 
 "reserved powers" nor the knowledge and intelligence of the 
 people can be brought to bear upon it, for want of the proper 
 apparatus, and no resource is left but an appeal to arms. 
 
 Is such the nature of our Constitution ? The question is 
 forced upon us by the present condition of the country. Our 
 career of peaceful prosperity has been interrupted by a fear- 
 ful civil war. Why did not the Government prevent that 
 war ? Whatever the remote or immediate causes of it, there 
 can be no doubt that the vast majority of people preferred 
 peace and Union. The Government, therefore, failed to 
 represent and execute the wishes of the people. If the 
 people loved the Union, the war, as it was not their work, 
 must have been the work of men by them intrusted with 
 power, — of political leaders and demagogues. Therefore, 
 under the Constitution and because of its machinery, politi- 
 cians and demagogues can rule the country in defiance of the 
 people, and endanger or destroy the Government. The war 
 might have been checked and prevented at its beginning by 
 the President, but it was not. Therefore, the Executive 
 branch of the Government provided by the Constitution is 
 defective, since it has failed to perform its work. 
 
 How the war will end no one can predict, or what may be 
 its results. But we may be sure that it Avill have results com- 
 mensurate with the great interests it has drawn within its 
 vortex, with the deep passions it has aroused, with the strong 
 forces it has set in motion. How are these to be met, regu- 
 lated, and controlled ? By the Constitution ? It has already 
 failed to perform a less difiicult task. By amendments to the 
 Constitution ? Wherein is it defective ? No one has told us, 
 perhaps no one can or will tell us. But, supposing the defects 
 pointed out, who is to contrive a remedy ? Are there any 
 living among us, now known, whose intellect and knowledge
 
 40 THE TKIAL OF THE CONSTITUTION. 
 
 fit them for the task, or whose fame and position inspire such 
 confidence, that they could by any possibility be called on to 
 perform it ? We cannot summon Hamilton and Washington, 
 Jay, Madison and Marshall from their graves to help us, and 
 the roll of our "statesmen" furnishes no such names. It 
 would be impossible in any condition of public sentiment likely 
 to exist, to employ the means provided in the Constitution for 
 its amendment. The concurrence of two-thirds of Congress 
 or of the State Legislatures, in any proposed plan, could not 
 be obtained, neither would a majority of three-fourths of the 
 States or of the people, accept any that could be suggested. 
 The experiment cannot be made, and would be a rash one if 
 it could. To throw the Constitution or any part of it, affect- 
 ing important interests and sectional or party passions, to be 
 agitated before the people, excited by recent civil war, would 
 endanger its existence, might renew the struggle on new fields, 
 and end in the entire destruction of the Government, and the 
 separation of the Union into many fragments, instead of two 
 as now threatened. We may therefore set aside the constitu- 
 tional provision for amendment, as unfit for use now, or under 
 any circumstances likely to be created by the war. 
 
 But we cannot throw aside the natural laws that govern 
 society, which declare that a government is made for a people, 
 not a people for the government, and that an intelligent people 
 will have a government to satisfy their intelligence. Either 
 an acorn or the Saxon race, planted in a vessel, made of either 
 clay or paper, too narrow for its expanding force, will break 
 the vessel and become severally an oak, and a free, progressive 
 nation. The reserved poAver of the people cannot be chained 
 up by fifth articles or by any forms that impede its action, when 
 action is needed. It may well be doubted whether there is or 
 can be such a thing in a political community, as the reserved 
 power of the people, or whether it be possible, in the nature 
 of things, to contrive a government which can be limited or 
 restrained, except by the wishes, convictions, and' interests of 
 the nation, expressed by custom, by votes, by tlie press, by 
 silent acquiescence, or, as Carlyle expresses it, by " not re- 
 volting," and if need be, by forcible resistance.
 
 A WRITTEN CONSTITUTION. 41 
 
 A government must be checked either by these influences 
 or not at all. The received theory of our Constitution is, 
 that it is alterable, not by the Government, but by the people. 
 That is to say, it cannot be altered by representatives of the 
 people assembled in Congress, but it may be altered by repre- 
 sentatives of the people assembled in a convention. But 
 suppose Congress made an alteration, which was approved and 
 sustained by the people ; that a sudden emergency should 
 arise, when the Government must either exert unconstitutional 
 power or be destroyed. Should the people acquiesce, what 
 power has the Constitution to protect itself? The work of 
 Congress can only be undone by a subsequent Congress, and 
 will be, if the alteration should not satisfy the people, other- 
 wise not. If the change be a wise one and prove beneficial, 
 it will be adopted by the people and become, in time, custom 
 and organic laAv. So that we get at last to the English doc- 
 trine, that Parliament is omnipotent, that is to say, it cannot 
 be legally restrained. Any change in the Constitution may 
 be made by act of Parliament, which may be repealed by 
 another act, if the change is not agreeable to the people. The 
 difference between Congress and Parliament is, that the latter 
 has legal power over the subject, and the former, by the law 
 as generally understood, none at all. But a law that cannot 
 be enforced is a nullity, and so is power that cannot be exerted. 
 The reserved power of the people cannot be exercised, and 
 therefore does not exist. The alleged legal restraint on the 
 power of Congress cannot be enforced, and therefore there is 
 no restraint on it. The whole power of the people, within the 
 sphere of the General Government, does and must, in the 
 nature of things, reside in Congress, and the security of the 
 people consists in their control over Congress by the ballot- 
 box. 
 
 But it may be said that the Government itself supplies the 
 check to restrain its poAvers. This can only mean that the 
 different departments of the Government are a check on each 
 other. The exercise of poAver, whether by an individual or 
 nation, is naturally divided into thinking, judging, and doing. 
 Action implies all three : thought to originate, Avill and force
 
 42 THE TRIAL OF THE CONSTITUTION. 
 
 to execute a conceived purpose, judgment to compare it with 
 rules of conduct. These functions in free Governments are 
 assigned to different persons, as if united in one they woukl 
 be liable to abuse, though their essential character is the same, 
 Avhether exercised by one or several. When it is said that a 
 Government itself furnishes restraints on its own action, it is 
 not meant that the whole power of Government thus restrains 
 itself, for that would be absurd. The only possible check on 
 Government must be external, not internal, for it is else con- 
 trolled only by its own volition. But one branch or depart- 
 ment of Government may have power to limit the action of the 
 others, and this is meant, when it is said, that our Govern- 
 ment furnishes restraints upon itself by which the Constitution 
 is protected. Should it be violated by the united action of 
 all branches of the Government, the Constitution has no pro- 
 tection from within. 
 
 To what conclusion, then, does this reasoning lead us ? To 
 that at which we arrive by a short road in all inquiries into 
 the nature of Government, — confidence in the persons to whom 
 power is intrusted, and confidence in the people. If they be 
 wanting in duty and intelligence, then all is wanting that gives 
 security to free institutions, and the Constitution is worthless 
 as the notes of a broken bank. 
 
 But it is not to be supposed, we may be told, that all branches 
 of the Government will conspire to violate the Constitution, 
 neither is it fair to assume that the people would submit, if 
 they did. They would punish and frustrate such an attempt 
 by the ballot-box. True enough, unless the thing done hap- 
 pened to suit their wishes, their passions, their mental and 
 moral condition, which may be high or low. If low, and sinking 
 lower, they will soon lose all power over the Government and 
 will neither care whether, nor know when, the Constitution is 
 disregarded. But if their spirit and intelligence be high and 
 progressive, and be represented by the persons who administer 
 the Government, it is a supposable case that defects in the 
 Constitution, revealed by experience, should be corrected, or 
 changes demanded by necessity should be made, by the com- 
 bined action of all branches of the Government, with the
 
 A WllITT EN CONSTITUTION. 43 
 
 assent of the people, when prescribed forms cannot be ob- 
 served, either because, by reason of their intricacy, they can- 
 not be applied at all or not in time to meet a dangerous emer- 
 gency. Thus changes have been made in the English Consti- 
 tution, which, because it is custom, is far more certain, definite, 
 and positive than ours. Wliy have those changes been so 
 made ? Is it because of any peculiarity of that law, or is it 
 because of a principle inherent in all free and representative 
 governments ? If the latter, then we may hope that altera- 
 tions of our Constitution will be made in the same way, not- 
 withstanding its fifth article. 
 
 The English Government has been gradually built up to its 
 present proportions by Parliament, chiefly by the popular 
 branch of it, the House of Commons. The germ of a Parlia- 
 ment or representative legislature, existed in the Saxon 
 institutions at the earliest and rudest period, because the 
 spirit of freedom is inherent in the Saxon race. Neither that 
 spirit nor its outshoot was destroyed by the Norman conquest. 
 The roots of both lived in the soil through the winter of tyr- 
 anny that followed, and soon acquired strength to appear 
 above the surface. They grew with the growth of the people 
 in power and civilization. The Saxon element proved stronger 
 than the Norman, or rather, Norman and Saxon were of kin- 
 dred race, lovers of liberty as well as of power, and they 
 assimilated ; the Norman creating a House of Lords, or coun- 
 cil of the King, and the Saxon a House of Commons, or coun- 
 cil of the people. By the touches of time, izough and gentle, 
 for they were subjected to both, by the blood of brave men, 
 and the thought of wise men, King, Lords and Commons 
 were slowly moulded into the present symmetrical structure. 
 Throughout the Avhole process the House of Commons was the 
 principal agent of change. Incessantly it gained power, be- 
 cause the people were ever acquiring Avealth and intelligence, 
 which are the sources and means of power. At length it 
 gained all the power, triumphed over mitre, crown, and coro- 
 net and was proclaimed " omnipotent," by which is signified 
 that it possesses the supreme sovereign power of the state, un- 
 controlled by any superior. It became strong because the
 
 44 THE TRIAL OF THE CONSTITUTION. 
 
 people became strong, and it ■wielded all their strength. It 
 was not fettered by any vague, undefined, " reserved powers " 
 of the people, or imprisoned by the bars and bolts of im- 
 practicable forms. The people trusted it with their whole 
 power, and it was faithful to the trust. 
 
 It was a slow process, however, this of getting to be om- 
 nipotent, resisted by all manner of obstructions, — sword and 
 sceptre, feudal battlements and royal towers of strength. 
 Nevertheless the people triumphed. They triumphed by 
 means of their representatives who were not delegates. They 
 triumphed because they gave to these their whole power, and 
 did not attempt to exercise it themselves, reserving only the 
 right of approving or disapproving what had been done for 
 them in good faith, after it had been tested by experience. 
 They knew what they wanted, but did not know. how to get 
 what they wanted, and they intrusted with authority men 
 whose learning and wisdom were adequate to the task. Not 
 one of the improvements of the British Constitution could 
 have been contrived by the people, or proposed by a majority 
 of two-thirds of them, or ratified, after popular debate and the 
 handling of tribunes, by a majority of three- fourths. Yet 
 they got them all, sometimes it is true by rough work and 
 through passages of difficulty and peril ; yet they got them. 
 They did not make them. They were made for them by their 
 wisest and best men. The people did not ratify the perform- 
 ances of these by votes and conventions, but by acceptance, 
 by enjoyment, by love and reverence ; walls and buttresses 
 stronger to resist rash, passionate, mistaken aiul dishonest 
 innovations, than any reserved powers or fifth articles that 
 could have been contrived to curb the free yet responsible 
 action of Parliament. 
 
 The English Constitution is not without internal checks to 
 regulate the Avorking of its machinery. They are described 
 by elementary wi-iters as contrived to prevent the encroach- 
 ment of one branch of the (jrovernment on the right and au- 
 thoi'ity of aiioiher, or of one class or oi'der of the people on 
 the liberty and intei'csts of another. They create that balance 
 of power and balance of interest which secures the steady and
 
 A WRITTEN CONSTITUTION. 45 
 
 harmonious action of the Avhole. They all tend to secure the 
 supremacy of the Legislature, and to subject it to the control 
 of the people. 
 
 All branches of the Government must unite to make a law, but 
 none of them can long and persistently resist the Legislature, 
 which represents the public sentiment of the day. Parliament 
 is the driving wheel of the engine, but popular opinion is the 
 steam in the boiler. The King can veto a bill, but must do 
 so by his Ministers. He can dissolve Parliament, but only to 
 have another elected by the people, charged with a fresh ex- 
 pression of their will. Lords and Comriions must unite in the 
 enactment of a law ; but laAvs for taxing the people must origi- 
 nate in the Commons. Parliament can control the King by 
 its control over the supplies, over the civil list, over the army 
 and navy, over his own income and over his responsible ad- 
 visers. The Judges hold their offices during good behavior, 
 which secures their independence. It is their province to in- 
 terpret the law, and to apply it to the cases that arise, but 
 they have no power to declare an act of Parliament invalid. 
 The authority of Parliament is therefore transcendent, though 
 surrounded by restraints; it wields the absolute, despotic 
 power that must exist in every nation, but so long as the peo- 
 ple love liberty and reverence traditions and ancient rights, it 
 cannot alter the Constitution against their will. 
 
 The English Constitution was not made by any man or set 
 of men, appointed at a particular time, for the purpose. It 
 grew out of the wants of every period of its history, and was 
 slowly built up, by minute changes, to satisfy those wants. 
 It took its shape at every stage of its progress, by virtue of a 
 universal law of nature, that the internal spirit is manifested 
 by external form, that the invisible is represented by the 
 visible, that mind rules matter, and makes of it an instrument 
 to execute its will. 
 
 When the Catholic Church and a feudal aristocracy absorbed 
 the education and wealth of England, the priesthood, the 
 barons and the feudal monarch ruled the Government. When 
 commerce and the arts of industry diffused wealth and edu- 
 cation among the people, the House of Commons acquired
 
 46 THE TRIAL OF THE CONSTITUTION. 
 
 power. The influence of tliis tliird estate increased. It com- 
 prises the commerce, the manufactures, the capital, a portion 
 also of the industry of England, but it is balanced by the land, 
 by the cultivated intelligence and by the high character of the 
 nobility. The governing classes of the people, perhaps all 
 among them who are fit to govern, are divided into these two. 
 Parliament represents them both, and Parliament is supreme. 
 It could not be otherwise. Absolute rule is eternally the 
 attribute of strength. Given a free people and a representa- 
 tive Government, and the Legislature must be supreme. 
 
 So it has happened in England, and so it will happen here, 
 unless our institutions be subverted by the dangerous tendency 
 of a democracy towards despotism, — that is to say, unless the 
 people prove incapable of representative government. The 
 difference between us and England is that we have no class of 
 large landowners, therefore no nobility, and therefore no 
 House of Lords. The Senate, indeed, represents a peculiarity 
 of our system, — the independence of the States. But the 
 Senate is scarcely, on that account, less under the control of 
 the people than the House. Congress, therefore, is practi- 
 cally a House of Commons, without the Lords, as we are the 
 English people Avithout the aristocracy. The power of Con- 
 gress, therefore, is only the greater on that account, because 
 it is not so likely to be divided against itself. 
 
 The powers of Congress are indeed defined, and therefore, 
 it is said, limited by the Constitution. But how can that 
 limitation be enforced ? What portion of the machiner}' of 
 Government provides a check on Congress that does not exist 
 in the English sj^stem, under Avhich Parliament has become 
 supreme? The King has an absolute veto, but the Pi-esident 
 a qualified one, which may be and has fre(|uently been over- 
 come by a vote of two-thirds of Congress. 
 
 Suppose Congress, either with or against the consent of the 
 President, should exceed its constitutional powers, where is 
 the check? Every one will at once answer, in the Judiciary. 
 In America, the Constitution is the supreme law, or to state 
 it as emphatically, the law ; in- England, an act of Parliament
 
 A WRITTEN CONSTITUTION. 47 
 
 is the law : in both, the Courts are bound to administer the 
 law. 
 
 In all discussions concerning an unwritten Constitution like 
 that of England, one question only can arise. Does it suit 
 the present condition of the people ? There can rarely be 
 any doubt as to what the law is, for customs are by their 
 nature certain and known. The mere existence of a customary 
 law, moreover, is proof that it is founded on truth, for such 
 only does time respect. But a written Constitution not yet 
 fully interpreted or sanctioned by experience, and therefore 
 still on trial, presents two other questions : what is the law ? 
 and does it conform to the natural law inherent in every Go- 
 vernment, and which must and will be obeyed ? 
 
 Let us first consider the second of these questions. What 
 is the natural organic law to which every Constitution must 
 conform or perish ? Municipal law is " a rule of civil conduct 
 prescribed by the supreme power in a state."* But how is 
 the power to be applied ? Through agents or officers, whose 
 functions are defined by custom, which implies the consent of 
 the people or " state," or by a plan made for the purpose and 
 formally ratified by the people. In either case it is the 
 supreme power of the people, which is employed to make laws, 
 and which when distributed among several, or confided to one 
 person, constitutes a Government. A mere unorganized mul- 
 titude, however large, though it has power, has no govern- 
 ment. The power is latent ; potential, but cannot act. 
 When the power of the multitude, with or Avithout restriction, 
 is granted to or obtained by one or several, then Government 
 begins, and its plan or form determines how the power shall 
 be limited and how used. 
 
 Government, therefore, may be described as the means or 
 as a machine by which ijower is used for making laws. 
 
 Now, Avhat is power ? Without entering into any subtle 
 analysis, we may say that it is the faculty of doing anything. 
 
 * 1 Blackstone's Comm., 44.
 
 48 THE TRIAL OF THE CONSTITUTION. 
 
 It is an invisible force existing in nature, and revealed by 
 visible effects. It is therefore controlled by natural laws, 
 •\vliicli cannot be resisted by any liinnan contrivances. The 
 power of man is exerted by will, and will must be preceded by 
 thought. Action, therefore, is the result of thought and will. 
 But action is physical, and there can be no action Avithout 
 physical ability. The power of the people, therefore, consists 
 of their opinions and desires, prompting them to will, with the 
 material force to execute their will. This, too, is the power 
 of Government, which is nothing more than the power of the 
 people, and is derived from the people. When the people 
 grant, Avillingly or unwillingly, all their power of thought, of 
 will, and of physical force, to a Government, they have none 
 left, and that Government is absolute. When they grant a 
 portion of their power, according to the amount retained, and 
 ■practically exerted, t\\Qy are free. But as they do not possess 
 what they have granted, or what has been taken from them, 
 so they do not possess what they cannot use, although it may 
 have been theoretically retained in their plan of Government. 
 And this result is produced either Avhen the power retained 
 cannot be used, through some defect in the machinery of Go- 
 vernment, or because, from its nature, the people cannot use 
 it. In both these cases it has no real existence. 
 
 Are not these the laws or fundamental truths that control 
 political power, or those of them that apply to the present 
 topic ? Let us consider them in relation to alterations of the 
 Constitution, and the authority of the Judiciary to prevent 
 such alterations. 
 
 Power which the people cannot use they do not possess, 
 whether the Constitution reserves it to them or not. AVhen a 
 Government is created, whatever its form, all the power of the 
 people is divided between them and the Government. There- 
 fore, Avhatever portion of power the people do not keep for 
 themselves, the Government must acquire. Now, power is the 
 faculty of doing something ; and whatever the people cannot 
 do they have not the power to do, and no constitution can give 
 it to them. It is because of this inability of the people to do 
 certain things, which nevertheless must of necessity be done.
 
 A WRITTEN CONSTITUTION. 49 
 
 that Governments are established at all. The people cannot 
 make laws. The power of making laws, therefore, belongs to 
 Government, since there must be laws. The people cannot 
 execute the laws, therefore they must be executed by Govei'n- 
 ment. The people cannot interpret the laws, and apply them 
 to cases as they arise, according to the elaborate legal science 
 which grows up in a civilized community, therefore this func- 
 tion must be performed by Government. All these things, 
 and many others, the people cannot do. But they are things 
 which must be done, and they can be done only by Govern- 
 ment. 
 
 Can the people alter the Constitution ? Not, as already 
 shown, by the means provided in the Fifth Article, or not in all 
 cases, — not when the alteration may be most important, or 
 may be most needed. Indeed, it may well be doubted whether 
 the people are competent for such work at all, any more than 
 they are for making, executing, or administering laws. Yet 
 a change may be absolutely necessary to save the nation from 
 destruction. If the people cannot make the change, they have 
 iiot the power to make it. Who has ? The Government must 
 have it, or the Constitution can be altered only by a revolution. 
 
 What then becomes of the power of the people to protect 
 their rights and liberties ? It consists of such power as they 
 are able to exercise. They cannot, in tlie nature of things, 
 possess any other. In Representative Governments they can 
 and do exercise control over the persons intrusted with power, 
 and in this consists their security. In all civilized countries 
 they influence Government by means of enlightened opinion. 
 If these defences fail, force only remains, physical resistance 
 or insurrection, and even this they lose under a military des- 
 potism. 
 
 If the people can neither make laws nor execute them, nor 
 apply them judicially, nor alter the Constitution — and there- 
 fore all these things must be done for them by the Govern- 
 ment — it is not easy to see wherein their reserved power 
 consists. Is it not evident that they have really intrusted 
 the Government with all their power, and that the Constitu- 
 
 4
 
 50 THE TRIAL OF THE COXSTITUTIOX. 
 
 tion, like tlie Great Charter and other organic Acts of the 
 British Government, is nothing more than a Bill of Rights ; 
 dechiratory of the Avishes and feelings of the people, and 
 enumerating the rights, privileges and immunities they have 
 inherited and desire to enjoy and transmit to their posterity? 
 It is an express and formal statement of these, and a solemn 
 notice to the Government, that all of them are to be held 
 sacred and preserved forever. But what power have the 
 people to keep this Constitution or Great Charter of Liberty, 
 inviolate ? The same power possessed by the English people, 
 the privilege of voting at periodical elections, and of dis- 
 missing those who shall dare to infringe or destroy it against 
 their will. The Constitution has no other protection, should 
 all branches of the Government, — Legislative, Executive^ 
 and Judiciary, — combine to alter it, and Congress, but for 
 the alleged check of the Judiciary, would, like Parliament, be 
 omnipotent. 
 
 Can there be such a check, however expressly it may be 
 provided in the Constitution ? Is it possible, from the nature 
 of the forces to be applied, so to construct the machinery of 
 Government as to make the Judiciary the controlling force ? 
 
 PoAver is the faculty of doing a thing or causing it to be 
 done. What a man cannot do himself, he may do by ma- 
 chinery, or may have done for him by other men, if he can 
 find any competent to the task and can control them. He 
 does this by delegating his poAver over the object to others. 
 I cannot Avalk or run forty miles an hour, but I can travel 
 at that rate in a raihvay train. The moment I enter the car 
 I give up my poAver over the object sought. The train moves, 
 I am moved. I Avish my ship to make a voyage to China. 
 I cannot take her there myself. Nevertheless, I have the 
 power to accomplish my purpose if I can employ some one 
 Avho has the skill to take her to China. As soon as he is in 
 command of her, I lose the conmiand. But I have no such 
 poAver, if I employ one Avho has not the skill ; neither can I 
 travel forty miles an hour if I use a trotting Avagon instead of 
 a steam car. I have a perfect right to accomplish either 
 object if I can, and my poAver exists in the choice of compe-
 
 A WRITTEN CONSTITUTION. 51 
 
 tent agents. I have no other power over that object what- 
 ever. 
 
 Let us assume that the men who made the Constitution in- 
 tended to keep the Government, under all circumstances, within 
 its prescribed limits; that they intended that the Constitu- 
 tion should not be essentially altered, except in the manner 
 prescribed by itself. It is asserted that the whole machine 
 was meant to be self-regulating, and that the part of it 
 designed to control the rest, and prevent eccentric action, is 
 the Supreme Court. In other words, Legislative and Execu- 
 tive power are controlled by Judicial power, or are else un- 
 controlled by any internal force. Should Judicial power 
 prove too weak for this purpose, the others, or whichever of 
 them is the stronger, will reign supreme. It is a vain thing 
 to delegate power that cannot be exerted. Such power has no 
 existence. 
 
 Now, which is the strongest of these three branches of Go- 
 vernment, the recipients and trustees of the power of the 
 state ? Is it the Legislature which originates, thinks, plans, 
 and wills ; which represents the people ; which is ever in con- 
 tact with them, receiving fresh impulses from their opinions 
 and feelings and renewed trust at short intervals ; which 
 makes the laAvs and controls the purse and the sword ? Or is 
 it the Executive, which neither originates, nor plans, nor wills, 
 nor makes laAvs, but whose province it is to apply to facts the 
 thouo;ht and will of the Lenjislature, to enforce its laws, which 
 is dependent on it for the means of doing so, and though 
 elected by the people, receives not from them a perpetual, 
 renovating stream of confidence ; may, indeed, find that in- 
 vigorating current wholly withdrawn ? Or is the Judiciary 
 stronger than either of these, or both of them combined ? 
 
 One would think not, from even a superficial glance at its 
 nature. It originates nothing ; it plans nothing ; it has no 
 will whatever. The thought, the plans, the Avill of others, are 
 its law. It has no power of spontaneous action. Its faculties 
 are dormant until called forth by a "case." However fla- 
 grantly the Constitution may be violated, the Judiciary cannot 
 interfere by Avord or deed, but must sit a silent, powerless
 
 52 THE TRIAL OF THE CONSTITUTION. 
 
 spectator, unless life and motion be imparted to it hj the 
 touch of an attorney. Should the breach of the law be one 
 that cannot give rise to a "case," — and there may be many 
 such of the gravest character, — or should it not in fact give rise 
 to one, — which may easily happen, for it may do no injury or 
 slight injury or it may do good or suitors may, in troubled 
 times, be deterred by force or terror, — the Supreme Court is 
 utterly impotent. It is impotent, too, should the Legislature 
 think fit to overrule its judgment. Its decree, indeed, may be 
 enforced upon the parties to the suit immediately before it ; 
 but suppose the Legislature should disregard its decision, and 
 should be sustained by the people, what could the Court do ? 
 It has no purse, no sword, nothing but a legal opinion with 
 which to resist legislative power, armed with these and with 
 popular opinion besides. Such are the opposing forces which the 
 Court would be likely to encounter, for no clear and intentional 
 departure from the Constitution will probably be made, either 
 by the President or by Congress, unless the measure really is, 
 or is supposed to be agreeable to the wishes of a ruling party 
 in the country. 
 
 The Judiciary is not elected by the people, and does not 
 therefore represent their wishes or opinions, except their gene- 
 ral desire that justice be fairly administered according to law. 
 For this reason the Judges are exempt from pojDular control. 
 They pass upon the rights of individuals, and therefore should 
 be free from all external influence. They do not make laws, 
 but interpret and administer them by the rules of a difficult 
 science. This science the people do not understand, neither 
 are they competent judges of the qualities necessary to profi- 
 ciency in it, and as most of its principles are immutable, those 
 wlio are to apply them ought to be governed only by those 
 principles. An independent Judiciary is therefore all-im- 
 portant. But in a representative government an independent 
 Judiciary is a Aveak pow^r, because strength comes from tlie 
 people. 
 
 Moreover, the guide of the Judiciary is precedent. Tlie 
 ruling spirit of the people is progress. It is the province of 
 the Judiciary to say what the law is at a given time. It is
 
 A WRITTEN CONSTITUTION. 53 
 
 the privilege of the people to say what it shall be. But if any 
 part of the law be legally immutable, the Judiciary cannot 
 follow the lead of the people. If the* Constitution be immu- 
 table, what was law in 1787, must be law as long as the Con- 
 stitution lasts. To maintain it, therefore, the Judiciary must 
 be stronger than the people, stronger than the representatives 
 of the people. In a popular government this is impossible. It 
 contradicts its elementary principles. The Judiciary is armed 
 with no means of resisting the people or their organ, the 
 Legislature, and, its alleged power for that purpose does not 
 exist. The Judiciary has a wide and fruitful field for the 
 exercise of high talents and noble virtues. Our Supreme 
 Court has cultivated that field with assiduous care and dis- 
 tinguished ability, and filled it with choice and most valuable 
 trees of thought and knowledge, bearing golden fruit, but in 
 its soil the tree of political power cannot grow. 
 
 No convention can change the respective and very diiferent 
 attributes of Legislative, Executive and Judicial power. The 
 power of the people, delegated to Government, is essentially a 
 unit and differs only in its mode of operation. It may be 
 united in one ofiice or distributed among several, but in each 
 will retain its nature and work after its kind, and will be 
 power thinking and willing, power acting or converting Avill 
 into fact, and power judging or deciding upon ",cases" and 
 the conflicting interests of parties. The object sought in the 
 machinery of a free Government, is not to alter the natural 
 qualities of these functions, for that is impossible, but to avoid 
 the danger of concentrating all power into one hand by fur- 
 nishing suitable instruments for each function, to keep each in 
 its appropriate sphere. A Constitution must therefore pro- 
 vide that the Legislature shall neither execute its own laws, 
 nor decide upon the rights of parties ; that the Executive shall 
 neither make laws nor decide upon the rights of parties ; that 
 the Judiciary shall neither make laws nor wield the physical 
 force of the nation to execute them, but that each shall have 
 only so much of the pov/er of the others as may be necessary 
 to protect itself in its own separate province. This object is 
 attained in the English Constitution, it is attained also in ours ;
 
 54 THE TRIAL OF THE CONSTITUTION. 
 
 but neither of them does, nor can any, make these several 
 branches of power equal to each other, or prevent that which 
 is stronger than the others by nature from being supreme. 
 
 The Constitution cannot make the law-expounding power 
 equal or superior to the law-making power. To make laws 
 implies superiority, implies obedience, for laws not obeyed are 
 no laws. Sovereignty and Legislation are therefore, as Black- 
 stone says, convertible terms, one cannot subsist without the 
 other.* As there cannot be two powers in the same Govern- 
 ment each of which is sovereign, it follows that in our system 
 Congress is omnipotent, in the sense that in the English 
 system Parliament is omnipotent. It may be said, this 
 places the Constitution at the mercy of Congress, and thus at 
 the mercy of the blind, passionate, capricious impulses of 
 popular opinion. But the question is, not what is desirable, 
 but what is and must be. In England, as the people acquired 
 power the Legislature became supreme ; here, w^here the peo- 
 ple have power, the Legislature is supreme. We have not the 
 influences which give permanence, stability and security to the 
 English Government, because we have not in our population 
 the elements whence these influences emanate. We have not 
 an established church, a landed aristocracy, an ancient throne, 
 all invested with wealth, splendor, legal power and rank, and 
 the prestige of old associations and national traditions. The 
 Convention had no materials out of which to fashion these but- 
 tresses and bulwarks to the edifice they Avere building, for 
 neither a royal family, a nobility, nor a Church existed in the 
 country. 
 
 They had only a very intelligent people, composed of the 
 best race, without a privileged class, enjoying great equality 
 of condition and placed amid circumstances calculated to de- 
 velop their energies and virtues to the greatest extent. We 
 have the same people, Avith the advantage of seventy years' 
 experience, during which they have prospered under this Con- 
 stitution, in peace and happiness, up to the present time. It 
 has proved adequate to all their wants, and they have not 
 
 * 1 Blackstone's Comm., 47.
 
 A W KITTEN CONSTITUTION. 55 
 
 ■wished to change it ; on the contrary, their love and respect 
 for it have constantly increased with their numbers, their 
 riches, their intelligence and their power. The Convention 
 had no choice but to make a popular government. When 
 tlicy did so, they accepted all its consequences. We have no 
 choice but to live under one. The people rule. The country 
 is theirs and they govern it. The Constitution is theirs, and 
 they can and will mould and modify it to suit their wishes. 
 We come, therefore, at once to the foundation of all republi- 
 can government, — the intelligence of the people. If that fail, 
 the Constitution will fail. If the people prove unfit for free- 
 dom, they cannot maintain free government, for its essence 
 consists in the exercise of power by the people. 
 
 We are committed to the experiment. The Constitution 
 has failed to protect us from the calamity of a bloody and de- 
 structive civil war ; but it does not follow that free govern- 
 ment is to fail. That will depend on the people, and their 
 intelligence, prudence and patriotism are likely soon to be 
 tested. The great principles of the Constitution are true. 
 The machinery by which they were meant to be carried out is 
 for the most part Avell contrived for the purpose. But its 
 defects must be 'Corrected. What they are and what is the 
 remedy are the problems presented by the war. 
 
 We must expect that changes will be made, perhaps great 
 changes, and they ought to be made by Congress, for they 
 cannot be made by the Fifth Article, nor can the action of 
 Congress be resisted by the Courts. Why should they not be 
 made by Congress, if demanded by necessity, as they would 
 be by an English Parliament ? Should they be approved and 
 ratified by the people, what is the difference, whether their 
 consent be expressed by a Legislature or by a Convention 
 which they have elected, or before or after the alteration is 
 made ? It would still be the wishes of the same people carried 
 into effect. If the people should be dissatisfied, they can say 
 so through another Congress. If they continue to be satisfied 
 after the alteration is tried, it would be thus established as a 
 precedent- to be engrafted on the Constitution, as is tlie case 
 in Enixland.
 
 56 THE TRIAL OF THE CONSTITUTION. 
 
 Such Avould be the natural result, for the tendency of all 
 law is to resolve itself into precedent or custom. But the 
 peaceful settlement of such questions here is obstructed by 
 the want of undisputed legal right in the Legislature to dis- 
 pose of them. There is thus a conflict between its inherent, 
 necessary power, and its constitutional authority, which gives 
 rise to many embarrassing and dangerous doctrines. When- 
 ever the limits of authority are found to be too narrow, they 
 will be broken. But will they stay broken ? And how can 
 such questions ever be settled ? The Constitution is the per- 
 manent, supreme law. But is the construction put on the Con- 
 stitution by the practice of the Government and by judicial 
 decisions, the supreme law ? Not so according to some. The 
 Constitution is to be interpreted only by itself, and a thousand 
 years hence it will be still the Constitution, unaltered and su- 
 preme. The Constitution being new, many parts of it are of 
 necessity doubtful, and, like a statute, it can only be settled by 
 interpretation, as, from time to time, it is applied to facts. 
 Therefore, a constitutional question is almost sure to arise, and 
 has frequently arisen, on important measures of Government, 
 which meet opposition, and all such are opposed. The argument 
 is very convenient. It is easily made, it is not easily answered 
 and it can never be silenced. The right of Congress to establish 
 a Bank, to impose a Tariif, to make public improvements, to 
 legislate for the Territories, and other questions, have been 
 doubted, discussed, and settled, so far as the Government and 
 Court could settle them. They were all opposed on constitu- 
 tional grounds, but whenever debated they are still opposed 
 on the same grounds. A recent example of this was the case 
 of Dred Scott, when the practice of the Government and the 
 decisions of the Courts, ever since the Constitution was made, 
 Avere set aside, on the ground that they had violated the Con- 
 stitution. These questions are ghosts that cannot be laid, so 
 long as the Constitution is regarded as a finality in itself and 
 by itself, without regard to the custom which has grown up 
 under it. 
 
 Another mischievous effect of the denial of power in Con- 
 gress to settle constitutional questions is, that every such
 
 A WRITTEN CONSTITUTION. f)! 
 
 settlement is regarded as a violation of right by the party that 
 opposes it, — a wrong, therefore, which justifies resistance. The 
 Constitution has been broken by the Tariff, said the Southern 
 people in 1833, and we liave a right to oppose it by force; and 
 they carried their opposition to the verge of rebellion. The 
 Constitution has been broken by the exclusion of slavei'y from 
 Kansas, said the same people in 1861 ; and they did rebel. 
 In England this pretext for treason cannot be used, for there 
 are no limits to the constitutional poAver of Parliament. 
 
 But a breach of the Constitution not only justifies resistance 
 because it is a wrong which admits of no other redress, but, as 
 some contend, it dissolves the Union, and releases the citizen 
 from the obligations of allegiance. There is, indeed, properly 
 speaking, no such thing as allegiance in this free country ; no 
 such thing as "subjects," of course, — not even citizens. The 
 Constitution is an express, formal, written contract between 
 the people and the Government, to Avhich peo])le and States 
 are parties. Now, in law, if a contract be violated by one of 
 the parties, the other is released. If there be no common ar- 
 biter, each party must judge for itself. of the fact of violation. 
 But in this case there is no common arbiter, for the construc- 
 tions put upon the Constitution are not a part of it. When, 
 therefore, the Northern States "seceded from the Constitu- 
 tion" by refusing* to execute the Fugitive Slave law, and the 
 Government refuses or fails to enforce obedience, the contract 
 is broken, because the Constitution is broken ; the Union is, 
 ipso facto, severed, and the States are restored to their original 
 condition of independent sovereignties. 
 
 These disorganizino; notions have had immense influence in 
 causing our present difiicultics. They form the creed of sec- 
 tions and parties, and indeed they spring logically from the 
 principle that a written Constitution is and must remain a 
 finality forever, to be interpreted only by itself, and to be 
 altered only in the manner appointed by itself, by the " re- 
 served powers" of the people, — not by the power they liave 
 delegated to the Government. The fatal influence of the de- 
 ductions thus made has been greatly enhanced by another doc- 
 trine, drawn partly, indeed, from the same prolific source of
 
 58 THE TRIAL OF THE CONSTITUTION, 
 
 confusion, but so unpliilosophical, and so subversive of order 
 and the harmonious action of Government, that but for the re- 
 spectable names connected with it, it woukl be scarce Avortliy 
 a passing notice. 
 
 Mr. Jeiferson declared that " each department is truly inde- 
 pendent of the others, and has an equal right to decide for 
 itself what is the meaning of the Constitution, in the laAvs 
 submitted to its action,"* and his own conduct as President 
 Avas guided by that opinion. General Jackson had the same 
 ideas. They have not indeed been sustained by the best 
 writers on our Government. Nevertheless, the doctrines are 
 still alive and influential, for we find them asserted in an 
 opinion of the present Attorney-General, Mr. Edward Bates, 
 on the suspension of the writ of Habeas Corpus, given in obedi- 
 ence to a requisition made by the President, July 5, 1861. 
 
 He says, speaking of the different departments of the 
 Government, " Tliey are co-ordinate and coequal, thart is, 
 neither being sovereign, each is independent in its sphere, and 
 not subordinate to the others, either of them or both together. 
 . . . Now, if we allow one of the three to determine the 
 extent of its own powers, and also the extent of the powers of 
 the other two, that one can control the whole Government. 
 . . . Our fathers, having divided the Government into co- 
 ordinate departments, did not even try (and if they had tried 
 would probably have failed), to create an arbiter among them 
 to adjust their conflicts, and to keep them within their respec- 
 tive bounds. They have left by design, I suppose, each inde- 
 pendent and free, to act out its own granted powers, without 
 any legal superior possessing the power to revise and reverse 
 its action. ... In this view of the subject, it is quite 
 possible for the same identical question (not case) to come up 
 legitimately before each of the three departments, and be 
 determined in three different ivays, and each decision stand 
 irrevocable, binding upon the parties to each case ; and that 
 for the simple reason tjiat the departments are co-ordinate, 
 
 '■' Story on the Constitution, § 874.
 
 A WRITTEN CONSTITUTION. 59 
 
 and there is no orJained legal superior with power to revise 
 and reverse their decisions." 
 
 One would think that this was the reductio ad ahsurdum, 
 but he goes on. " To say that the departments of our 
 Government arc co-ordinate, is to say that the judgment of 
 one of them is not binding on the other two, as to the argu- 
 ments and principles involved in that judgment. It binds only 
 the parties to the case decided. But if, admitting that the 
 departments are co-ordinate, it be still contended that the 
 principles adopted by one department are binding upon 
 another, that obligation must be reciprocal. That is, if the 
 President be bound by the principles laid down by the Judici- 
 ary, so also is the Judiciary bound by the principles laid down 
 by the President ; and then we shall have a theory of constitu- 
 tional government flatly contradicting itself. That cannot be." 
 1^0 indeed, neither can we have a theory flatly contradicting 
 nature, truth, and reason, like that announced by the Honorable 
 Attorney-General, and producing such inextricable confusion, 
 that the wonder is that whilst propounding it, he did not see 
 that he was confuting himself, and that it was impossible to 
 impute to thb founders of our Government the design of causing 
 such outrageous results. Co-ordinate, coequal powers. Can 
 such things exist in a Government ? and if they could, would 
 any wise Convention think of introducing them, unless for the 
 express purpose that they should Avraugle and fight, as Mr. 
 Bates says they would ; for he says it is " quite possible " that 
 the same question would be determined in three different ways 
 by the departments. Of course, as the action of each is 
 naturally independent, the same question might be determined 
 differently at different times. Indeed, as the Constitution is a 
 complete whole, and constructions put on it are no part of 
 it, every one may construe it as he pleases. Therefore, there 
 is no Constitution. And as the departments of Government 
 are co-ordinate and coequal, and each may pull different ways, 
 and each disregard the action of the other, may we not say 
 also, we have no Government ? Three different powers of 
 Government, each supreme ; three different forces of precisely 
 equal strength. If such could be put into a material machine,
 
 60 THE TRIAL OF THE CONSTITUTION. 
 
 they would neutralize each other, and it would come to a dead 
 lock. 
 
 The various doctrines above stated are not reasonable, they 
 are not supported by the best authority, they are inconsistent 
 even with the controlling power of the Supreme Court, and 
 they have all grown out of the principle that our Government 
 is one of limited powers, Avhicli cannot be exceeded by any 
 branch of it, unless there be a change in the Constitution, 
 made by the " reserved powers " of the people, in the way 
 prescribed in the Fifth Article. They are the pestilent brood 
 of the false principle that power is divisible and can be, at 
 the same time, granted and withheld and that supremacy can 
 be given to weakness, when it is brought into conflict with 
 strength. These notions, however untrue, have nevertheless 
 exerted a powerful influence over our politics. What can any 
 thinking man say of them, except that they are the very 
 formulas of chaos, anarchy and misrule ? If they prevail, 
 the Constitution cannot stand the shock of this war. They 
 have been, indeed, to a great extent, the cause of the war. 
 If the Government is to be saved, it must be by the truth that 
 is in the Constitution, not by its errors or by the erroneous 
 interpretations put on it. It has truth enough to save it, 
 if the truth be allowed legitimate sway. It has distributed 
 power among three departments, the Executive, the Judiciary, 
 and the Legislative. The Legislature makes laws, and repre- 
 sents the people, and is therefore supreme. This truth is 
 a natural law ; it has carried our English ancestors through 
 the stress of many dangers and it can save us in this, — the 
 first storm our ship of state has encountered. 
 
 The above argument may be illustrated by recent ex- 
 amples in our history. We have said already that a Govern- 
 ment must have power sufficient to protect the public safety, 
 and that, should the limits of its authority be found too 
 narrow for that purpose, those limits will be broken, for 
 necessity supersedes all law. We have said that a case might 
 occur, when the Constitution would be infringed by the Lcgis-
 
 A WRITTEN CONSTITUTION. 61 
 
 laturc or by the Legislature and Executive together Avith the 
 consent and approbation of the people, Avhen it was impossible 
 or imprudent to await or to attempt the uncertain and tedious 
 process appointed in the Fifth Article. We have said also, 
 that the Judiciary is naturally the weakest department of the 
 Government and should a contest arise between it and the 
 Legislature, the latter would prevail. 
 
 All these events have happened. On the 4th March, 18(31, 
 Mr. Lincoln became President of the United States. In the 
 interval between his election and his inauguration, a rebellion, 
 planned in expectation of these events, was organized. Its 
 object was to dissolve the Union and to erect an independent 
 nation in the South. Many of the leading conspirators were 
 in Congress and in the Cabinet of the President, Mr. Bucha- 
 nan, and employed their official authority to destroy the 
 Government. The rebellion had assumed formidable dimen- 
 sions before Mr. Lincoln came into office. It was enlistincf 
 and equipping troops and organizing civil power. When 
 Mr. Lincoln became President, he found Washington threat- 
 ened, surrounded by hostile territory, its population and that 
 of the adjacent States disaffected and ripe for insurrection, 
 the Treasury plundered, arsenals stripped, the army and navy 
 scattered and treason lurking among its officers and in every 
 civil department also. 
 
 Prompt measures were evidently necessary, if the President 
 meant to save the nation, and he took them. Congress Avas 
 not in session. Without hesitation he exercised powers, which, 
 if not really doubtful, according to the just construction of the 
 Constitution, were doubted then and since, by himself and 
 otliers. He called out troops, he enlarged the army and 
 navy, he arrested and confined persons suspected of trea- 
 sonable acts or designs. When Congress assembled, they 
 ratified, expressly or impliedly, everything he had done. The 
 arrests continued. The freedom of the press was suspended, 
 members of a State Legislature were imprisoned on the eve of 
 its meeting ; over the whole country was stretched the arm of 
 a discretionary power, paramount to the Constitution. Con-
 
 62 THE TRIAL OF THE CONSTITUTION. 
 
 gress did not interfere, and up to this moment, still in session, 
 has not interfered, even by remonstrance. 
 
 On the contrary, as the strength of the rebellion and the 
 necessity for extreme measures have become apparent, Con- 
 gress has entertained and is now debating plans which greatly 
 exceed the powers granted by the Constitution, plans for a 
 general emancipation of all the slaves in the South, for the 
 confiscation without trial of the property of rebels, for reduc- 
 ing the rebellious States to the condition of Territories, and 
 other projects, some of which, though opposed on the ground 
 that they are unconstitutional, will no doubt be executed. 
 Meanwhile, the people are thoroughly aroused by the war, 
 their intelligence is called into eager exercise, the press carries 
 into every remote corner information of all that is done, 
 and countless debates and discussions in and out of Con- 
 gress. Yet the people give to these proceedings their hearty 
 approbation. They see the Government overstep what have 
 generally been considered its constitutional limits every day, 
 and they rejoice. 
 
 In this drama the Judiciary has not been wholly an idle 
 spectator. But it has no power of spontaneous action, and 
 once only has the hand of a suitor unlocked its lips. In Mer- 
 riman's case it spoke, and it spoke to denounce the action of 
 the Executive. But its decision did not even affect the case 
 before the Court, and although made by the Chief Justice 
 himself, has been Avholly disregarded both by Congress and 
 the President. 
 
 Now what is the meaning of all this ? Does it not show 
 that the Judiciary is weak, and the Executive and the Legis- 
 lature strong ? Strong from inherent power, but a hundred 
 fold strong when supported by the people. Does it not prove 
 that the power of the people cannot be checked and curbed 
 by Fifth Articles ? Who but a madman would now propose 
 recourse to the cumbrous forms of amendment appointed by the 
 Constitution ? Are not the people now exercising their " re- 
 served powers" by acquiescence, by eager support, by enthusi- 
 astic applause ? How else can they exert these powers ? and if 
 they cannot, is it not clear that they have not been reserved ?
 
 A W 11 ITT EX CONSTITUTION. 63 
 
 That Government must and does, in the nature of things pos- 
 sess, not a part, but the whole power of the people ? If the 
 people are dissatisfied with what has been done, thej can say 
 so at the next election, and then it can be undone. 
 
 The superiorit}^ of legislative to judiciial authority may be 
 illustrated by another example. As already stated, Congress 
 has from the beginning exercised complete authority over the 
 Territories on all subjects, including slavery. In the year 
 1856 the Supreme Court discovered that this authority was 
 not granted in the Constitution, so far as slavery was con- 
 cerned ; that slavery existed potentially in all the Territories, 
 by virtue of the Constitution, and that it is the duty of Con- 
 gress to protect it whenever it should exist in them as a fact. 
 But Congress refused to accept that decision of the Court, the 
 people have reversed it, and it will probably be reversed in 
 express and formal terms by Congress.* What can the Su- 
 preme Court do ? The Executive, the Legislature, and the 
 people are all opposed to it. It is utterly powerless. Yet, it is 
 said, the case of Dred Scott is law until reversed by the Court. 
 It would not be either a safe or an easy process to reverse it 
 by the Fifth Article. 
 
 All the measures executed or proposed, for carrying on the 
 war are defended on the ground that they are necessary to 
 save the nation. Is not this another way of saying that Go- 
 vernment has unlimited powers? They are justified as war 
 measures. The Constitution, it is contended, has invested the 
 Government Avith power to quell rebellion by force of arms, 
 and w^ar has its own laws, paramount to all others. The 
 country is therefore said to be under martial law. But war is 
 another name for necessity, and authority to meet it is sought 
 outside of the Constitution, which f^oes'provide for a state of 
 war, but not expressly or sufficiently. Would it not be as 
 logical and more candid to say at once, that the whole object 
 of any Constitution must be the defence of the nation and the 
 Government, and therefore no measures necessary for that 
 
 * This has since been done by a bill prohibiting slavery forever in all the 
 Territories.
 
 64 THE TRIAL OF THE CONSTITUTION, 
 
 purpose can be unconstitutional ? That the people must be 
 supposed to have delegated for this supreme end all their 
 power, even the power of transcending the limits of the Con- 
 stitution ? That when this is done with the consent and ap- 
 probation of the great mass of the people, such consent and 
 approbation must be regarded as a ratification, complete and 
 effectual, as if given according to the forms of the Consti- 
 tution. 
 
 I have thus endeavored to show that the doctrine that tlie 
 Judiciary has power to preserve the Constitution and to keep 
 the other departments within their appointed bounds, is not in 
 accordance with those natural laws to which every government 
 must conform. That such power, therefore, has no existence, 
 for it cannot be created by the vote of a Convention. I have 
 endeavored to show that by the same natural laws the Consti- 
 tution is not a finality, to be construed now as it was under- 
 stood, or supposed to have been understood, at the time of its 
 adoption, without reference to usage and custom and changes 
 of public opinion.* I have endeavored to prove also that 
 such a thing as a Government, w"ith departments possessing 
 co-ordinate and coequal powders cannot exist, but that of the 
 three departments, the Legislature or law-making power, is of 
 necessity supreme, and the delegate of the whole power of the 
 people. Let us now inquii'e what the Constitution does really 
 say, or what may be fairly implied from its language on these 
 points. We know^ that it must conform to the truth of nature 
 or perish. But the discrepancy may be partial only, and the 
 vital force of the remainder may be sufficient to save the struc- 
 ture. Or it may confain within itself renovating and redeem- 
 ing principles, that will cause a new growth to complete its 
 symmetry and secure its life and efficiency. We may be sure 
 of one thing, that whatever portion of the Constitution is un- 
 natural, that portion must be got rid of by some process or 
 
 * See report of tlie decisions of the Supreme Court of tlie United States. 
 in the case of Dred Scott vs. Sanford, 420.
 
 A WRITTEN CONSTITUTION. 65 
 
 other ; and now in the midst of war and looking to the pro- 
 bable and possible results of war, it is Avorth while to inquire 
 if that process may be easy, peaceful, and constitutional, or 
 whether it must be violent and destructive ; whether we too, 
 like our English ancestors, cannot make changes in our organic 
 law, without a revolution. 
 
 And first as to the alleged check of the Judiciary. The 
 provisions applicable to this subject are as follows : " The 
 Judicial power shall extend to all cases in law and equity 
 arising under this Constitution, the laws of the United States, 
 and treaties made, or which shall be made, under their au- 
 thority." "This Constitution, and the laws of the. United 
 States, Avhich shall be made in pursuance thereof, and all 
 treaties made, or which shall be made, under the authority of 
 the United States, shall be the supreme law of the land ; and 
 the judges in every State shall be bound thereby, anything 
 in the Constitution or laws of any State to the contrary 
 notwithstanding. 
 
 If we could read these clauses without reference to contem- 
 poraneous or subsequent interpretation, their meaning would 
 be clear enough and their necessity obvious. This Govern- 
 ment is a union of States, sovereign within their appropriate 
 limits. It is also a nation, with a central Government, for 
 national purposes, paramount to those of the States. A uni- 
 form law, therefore, is essential, which there could not be, if the 
 various States could each put their own interpretation on the 
 Constitution, or attempt to repeal a law of the United States. 
 To say, therefore, that the judges of the States are bound, 
 not by the laws and constitutions of their respective States, 
 but by the laws and Constitution of the United States, when 
 the two are in conflict, is merely to declare the purpose of the 
 Constitution itself, that Federal or National shall be superior 
 to State authority. 
 
 When the Supreme Court, therefore, overrules a decision of 
 a State Court or sets aside a law or Constitution of a State as 
 invalid, because inconsistent with a law or with the Consti- 
 tution of the United States, it is acting in its legitimate 
 sphere, as the expounder, the interpreter, the minister and 
 
 5
 
 66 THE TRIAL OF THE CONSTITUTION. 
 
 subordinate of its own law-making power. The Federal 
 Courts are superior to the State Courts, just as the Federal 
 Legislature is superior to the Legislatures of the States, but it 
 does not follow that the Federal Courts are superior to the 
 Federal Legislature, nor is that conclusion necessarily implied 
 in the language of the Constitution. The Constitution and 
 the laws made in pursuance thereof, shall be the supreme 
 law of the land. The Avord pursuance has two meanings in 
 popular use. One of these is confo7'mahly to, but the other and 
 more correct interpretation, because in accordance with the 
 signification of the verb whence it is derived, is, in prosecution 
 or execution of anything. The first part of the clause is con- 
 nected with the second by the word " and," thus controlling 
 the second, and giving to the laws and Constitution of the 
 General Government, supremacy over those of the States, 
 making the former, indeed, " the supreme law of the land." 
 The use of the word " supt-eme " in any other sense was un- 
 necessary, for supremacy was implied in the words Constitu- 
 tion and laws. It is fair to suppose that if the framers in- 
 tended to invest the Judiciary with the extraordinary political 
 power of controlling the Legislature, they would have said so 
 in explicit terms, for "judicial" does not mean political power, 
 more especially as the Judiciary has no such power in the 
 English Constitution, which was necessarily their model, nor 
 in any other Constitution known to history. Tliey did intend 
 to make the General Government, in its sphere, supreme over 
 the State Governments, and they expressed that intention in 
 this very article, and in language not to be misunderstood. 
 There is nothing in that language to show that they had any 
 other meaning, nothing to show that they intended to invest 
 the weakest of the two departments of the Government which 
 are necessarily subordinate, with controlling power over both 
 the others. 
 
 But I bow to authority. The words " in pursuance thereof," 
 have been interpreted to mean in conformity therewith, and 
 the word "supreme" has been held to apply to the Federal 
 as well as the State Governments. I shall not imitate the bad 
 example I have censured, by attempting to construe the Con-
 
 A WRITTEN CONSTITUTION. 67 
 
 stitution by itself alone, without regard to practice and prece- 
 dent and judicial opinion, but proceed to examine the law as 
 these have made it. 
 
 No elaborate investigation is necessary for this purpose, 
 for the principle that the Federal Courts have power to 
 declare an act of Congress which violates the Constitution, 
 null and void, is too well established to be questioned. 
 The first, and perhaps the highest, authority on the sub- 
 ject is that of Hamilton, in the Federalist (No. 78), highest 
 because he helped to make the Constitution. He says : 
 " The Courts were designed to be an intermediate body be- 
 tween the people and the Legislature, in order to keep the 
 latter within the limits assigned to their authority. The 
 interpretation of the laws is the proper and peculiar province 
 of the Courts. A Constitution is, in fact, and must be, re- 
 garded by the Judges as the fundamental law. It must, there- 
 fore, belong to them to ascertain its meaning, as well as the 
 meaning of any particular act proceeding from the Legislative 
 body. If there should happen to be an irreconcilable vari- 
 ance between the two, that which has the superior obligation 
 and validity ouglit, of course, to be preferred ; in other words, 
 the Constitution ought to be preferred to the statute ; the 
 intention of the people to that of their agents. . . . Where 
 the will of the Legislature, declared in its statutes, stands in 
 opposition to that of the people declared in the Constitution, 
 the Judges ought to be governed by the latter rather than the 
 former." 
 
 But a statute is not to be described as the will of the 
 Legislature, but of the people who elected the Legislature. 
 The meaning of the above language then is, that when the 
 will of the people of 1787, declared in the Constitution, is in 
 opposition to the will of the people of 1862, represented in the 
 Legislature, the Judges are to be governed by the former. It 
 may be said, indeed, that the Constitution is to be regarded 
 as the continuing and paramount will of the people, until 
 altered in the appointed manner. But, should the Avill of the 
 people change and the appointed mode of alteration be found 
 impracticable, the consequence would be that the people of
 
 68 THE TRIAL OF THE CONSTITUTION. 
 
 1862, must submit to the people of 1787. And wliat branch of 
 the Governmenc is selected to perforin the difficult task of 
 coercing them? The Judiciary; that "which Mr. Hamilton, in 
 the same essay, had just declared to be " beyond compari- 
 son, the weakest of the three departments of power," and 
 quoted Montesquieu for saying that it "is next to nothing." 
 In such a crisis as the present, how can its puny arm resist 
 the Executive, the Legislature and the people, the first two 
 making changes, and the last consenting to them ? 
 
 It is unnecessary to encumber our pages with a list of cases 
 in support of the principle laid down by Mr. Hamilton. The 
 best Avriters speak of it as a well-settled doctrine of our law. 
 It is thus forcibly stated by Chancellor Kent: "The people 
 of the United States have declared the Constitution to be the 
 Supreme Law of the land, and it is entitled to universal and 
 implicit obedience. Every Act of Congress and every Act of 
 the Legislatures of the States, and every part of the Consti- 
 tution of any State, which is repugnant to the Constitution of 
 the United States, is necessarily void. This is a clear and 
 settled principle of constitutional jurisprudence. The Judi- 
 cial power of the LTnion is declared to extend to all cases of 
 law and equity, arising under the Constitution ; and to the 
 Judicial power it belongs, whenever a case is judicially before 
 it, to determine what is the Supreme Law of the land.'"* 
 
 So spake a great Judge and lawyer. But, regarding the 
 subject from another point of view, that of a law-maker, it is 
 obvious, from this language, how weak a check the Judiciary 
 must be. " Whenever a case is judicially before it," the 
 Court may declare the supreme law, in opposition to the 
 Legislature. But Avhat provision is there for violations of the 
 Constitution, that for various reasons — heretofore mentioned 
 — do not give rise to "cases" or controversies between indi- 
 viduals, and cannot, therefore, be brought before the Court ? 
 For these there is no check, yet, they may be of a character 
 to alter the whole structure of the Government. What, then, 
 
 * 1 Kent's Com., 29:5.
 
 A WRITTEN CONSTITUTION, 69 
 
 are we to think of a power thus partial in its operation, and 
 which cannot act at all when most needed ? 
 
 The impossibility, if not absurdity, of attempting to make 
 the Judiciary paramount to the Legislature, seems to have 
 quite bewildered Judge Story, in his discussion of the subject, 
 for it is not easy, at least for an " unlearned " reader, to ar- 
 rive at any definite conclusion from what he says. He tells 
 us that, " In many cases the decisions of the Legislative and 
 Executive departments become final and conclusive, being 
 incapable of revision. Thus, in measures of an exclusively 
 political Legislative or Executive character, it is plain, that 
 as the supreme authority, as to these questions, belongs to the 
 Executive and Legislative departments, they cannot be re- 
 examined elsewhere. Thus, Congress having power to de- 
 clare war, to levy taxes, to appropriate money, to regulate 
 intercourse and commerce with foreign nations, their mode of 
 executing these powers can never become the subject of re- 
 examination in any other tribunal. So the power to make 
 treaties being confided to the President and Senate, when a 
 treaty is properly ratified, it becomes the law of the land, 
 and no other tribunal can gainsay its stipulations. Yet, cases 
 may be readily imagined in which a tax may be laid, or a 
 treaty made, upon motives or grounds wholly beside the 
 intention of the Constitution. The remedy, however, in such 
 cases, is solely by an appeal to the people at the elections, or 
 by the salutary power of amendment, provided by the Consti- 
 tution itself."* 
 
 This opens an extensive field in Avhich the limited powers 
 of the Government are unlimited, so far as the Judiciary is 
 concerned, and war, taxation, commerce and foreign in- 
 tercourse embrace large interests of the people. Again, he 
 says : " If the Judicial department alone should attempt any 
 usurpation. Congress, in its legislative capacity, has full 
 power to abrogate the injurious effects of such a deci- 
 sion The worst that could happen from a wrong 
 
 decision of the Judicial department, Avould be that it might 
 
 *■ Story on the Constitution, ^ 374.
 
 70 THE TRIAL OF THE CONSTITUTION. 
 
 require the interposition of Congress.* If the usurpation 
 should be by the Judiciary, and arise from corrupt motives, 
 the poAver of impeachment would remove the offender ; and in 
 most other cases, the Executive and Legislative authorities 
 could interpose an efficient barrier. A declaratory or pro- 
 hibitory law would in many cases be a complete remedy." 1[ 
 
 Here, then, we have the checking power checked, Execu- 
 tive and Legislative now subordinate and now pai-amount to 
 the Judiciary, and Congress authorized to declare what is the 
 supreme law, in opposition to the Judges. This extraordinary 
 confusion of ideas is the result of an effort to carry out false 
 principles, from which no consistent or harmonious conse- 
 quences can be deduced. A Government limited by internal 
 power is an impossibility. There is no such thing in nature 
 as the delegation of a part only of the people's power. It is 
 impossible that the weakest of the three Departments of Go- 
 vernment shall exercise control over the others, for to govern 
 is eternally the attribute, not of weakness but of strength, 
 which belongs, under republican — more especially under demo- 
 cratic — institutions, to the Legislature. 
 
 The attempt to erect the Judiciary into a tribunal to decide 
 upon violations of the Constitution, grew out of the attempt to 
 make a Government of limited powers. J Restricted authority 
 was intrusted to the Departments by the people, but " quis 
 ciistodiet ipsos custodeii ;'' who shall keep those Departments 
 within their appointed bounds? "One of them," says Mr. 
 Hamilton. But suppose that one transgresses? "Then ano- 
 ther of them," says Mr. Story. Which, therefore, is supreme? 
 "ISTeither of them," say Mr. Jefferson and Mr. Bates; "all 
 are equal, each is sovereign." 
 
 If it be a vain attempt to make things equal that by nature 
 are unequal, and to divide that which is by nature indivisible, 
 it is also useless to try to alter the character of judicial power 
 and convert it into political power. The makers of our Con- 
 
 * Story on the Coustitnlion, § ;^77-384. 
 ' t Story oil the Constitution, I 394. 
 
 X Federalist., No. 81.
 
 A W K I T T E N CONSTITUTION. 71 
 
 stitutioii dreaded the proverbial instability of popular opinion. 
 They feared to commit their Avork to its uncertain and danger- 
 ous billows. Hamilton, Washington and others, regarded de- 
 mocracy as a very doubtful experiment. They made the Con- 
 stitution as conservative as they dared to make it, but they 
 knew well it was a fragile bark, freiglited with a precious 
 cargo, and launched on the waves of a treacherous and tem- 
 pestuous sea. They looked in vain for the elements that give 
 strength and endurance to the British Government, the Church, 
 the aristocracy, the throne, each connected with the past and 
 the future, each pi-esenting bulwarks like rocks to the surges 
 of popular passion. Tiie Convention could use none of these 
 buttresses for their edifice, because the materials out of which 
 to construct them did not exist in the country. Both Legis- 
 lative and Executive power must be made the organs of the 
 masses. Executive power, in their system, must be merely 
 executive. It could not, like the English Throne, be the re- 
 presentative of the whole people, — not of a party, — the visible 
 manifestation of the collective majesty of the nation, connected 
 with the past by its traditions, with the future by its interests 
 and hopes, and the type of permanence in the midst of change; 
 therefore the constant refuge and protection of a minority and 
 of a weaker party in the State.* The sway of the people, — 
 that is to say, of a majority, — would act, it was easy to see, 
 with full and unrestrained force on the Constitution, on both 
 branches of the Legislature, and on the Executive, flow, 
 therefore, was the Government to be protected from inces- 
 sant changes ? How were the States to be kept within their 
 orbits, — how the General Government to be restrained from 
 usurping power, — how the different Departments to be held to 
 their appointed tracks ? Was it not evident that the Legisla- 
 ture, representing the unchecked will of the majority of the 
 people, would speedily engross all power ? The dread of the 
 Legislature is seen throughout the pages of the Federalist. 
 In England the Peers represent a class, the Commons other 
 
 * For the important part played by Royalty as the representative of the 
 people, in European history, see Guizot's History of Civilization.
 
 72 THE TRIAL OF THE CONSTITUTION. 
 
 classes ; but the King represents all. His power, his dignity, 
 his perpetuity, are derived, not from a party or a class, but 
 from the nation. In America the Senate represents the States 
 as such, the House the people, the President the people ; but 
 really and practically they all represent a party, because 
 elected by a party. If there is a conflict between them, it is 
 a conflict of parties ; if they all agree, it is because they are 
 all elected by the same dominant party. Neither of them is 
 elevated above the reach of party influence, — that is to say, of 
 capricious, passionate, often ignorant and reckless popular in- 
 fluence. Neither of them expresses the idea of nationality, of 
 endurance. Neither of them can be a secure shelter for a mi- 
 nority, for a defeated and oppressed party, or a menaced or 
 oppressed class. 
 
 This was evident to the Convention, but where was the 
 remedy ? There are but three branches of Government, and 
 the Legislative and Executive were of necessity yielded to the 
 people. The Judiciary alone was left. It is naturally the 
 representative of the law. They made it tlie representative of 
 the Constitution, Avhich they called the Supreme Law. They 
 tried to give stability to this supreme law by making it almost 
 unalterable, and by the fiction of the " reserved powers" of 
 the people, and they set up the Judiciary as the sentinel over 
 the Constitution, and the agent and representative of these 
 reserved powers. Alone of all the departments, it was not 
 elected by the people, nor was it dependent on them, or on 
 any other power, for its continuance in office, or for its emolu- 
 ments. It could not, therefore, be affected by the fluctuating 
 tides of party power, or by the wihl sallies of popular senti- 
 ment. If the Government was not to be a total failure in its 
 normal and healthy action. Judges would be appointed of 
 whom conservative sentiments might safely be predicated, be- 
 cause of their age, their learning, and their virtues. The 
 Supreme Court Avas, therefore, the fit representative of the 
 idea of stability, of perpetual endurance, of the Constitution, 
 the one thing intended to be permanent amid the ever-shifting 
 sands of democracy. 
 
 But man pioposes and God disposes by his eternal laws.
 
 A WRITTEN CONSTITUTION. 73 
 
 Not this, but something far different is the true function of a 
 Judiciary. Its natural pi'ovince is to interpret and apply the 
 law; the Imo made for it hy the law-making power. It must 
 work after its kind, like steam or acid and alkali, or not at 
 all. To make it the representative of the reserved, or any 
 other power of the people, to place it over the Legislature, is 
 to invest it with political and deprive it of judicial character, 
 or rather to destroy it altogether. The attributes of both it 
 cannot have. It cannot play the part of ro3^alty and be the 
 representative of the Avhole people, because it cannot take part 
 with a class or interest which may be threatened with injury ; 
 it represents only the law, which knows no class or interest. 
 It cannot protect the Constitution, because, as already said, it 
 has no power of spontaneous action, and the Constitution may 
 be destroyed before its face, and it cannot move a finger, un- 
 less the breach be one that can, and actually does give rise to 
 a case. 
 
 Constitutional questions, moreover, are generally party 
 questions. The most important of them must almost neces- 
 sarily assume this character, and excite feeling and passion 
 according to their importance. To decide such questions 
 would necessarily give to the Court a partisan aspect, make it 
 apparently the champion of one set of opinions, of a class, a 
 section, or an interest ; and as judges are after all men, would 
 have a tendency to stimulate their own party feelings, and 
 bias their judgment. If they possess political power, they will 
 necessarily possess party power; they will be tempted to ex- 
 ercise it for partisan objects ; they will be appointed, there- 
 fore, with reference to those objects, and the Judiciary would 
 thus morally be swept into the vortex of the elections. It 
 would no longer be a Judiciary, but a party organ. It would 
 represent not stability, but instability, and become, not a judge, 
 but an advocate. The Courts would thus be placed in a false 
 ■ position. They would lose the confidence of the people, and 
 when that is lost, reverence for the law and security for all 
 right will soon be lost with it. 
 
 In the Federalist and the Commentaries of Kent and Story, 
 which treat of our Constitution, it is assumed that any viola-
 
 74 THE TRIAL OF THE CONSTITUTION. 
 
 tion of its provisions must be nicade with a dishonest purpose, 
 and the Judiciai-y is described as a check upon corrupt usurpa- 
 tion of power. The exercise of unconstitutional or doubtful 
 authority, for a worthy and beneficial object or as a necessity 
 to save the Government from destruction, is not supposed. 
 The plan of amendment provided in the Fifth Article, it is 
 taken for granted, will be adopted, and prove sufiicient for all 
 such cases. But should it not be sufficient, should there be no 
 time to apply it, or should its obvious unfitness prevent any 
 party froui even thinking of appealing to it, the position of 
 the Supreme Court would become one of much embarrassment. 
 And such is precisely the case now presented. The Govern- 
 ment has exercised and will exercise doubtful powers. Its 
 opponents say that it has already exceeded the limits imposed 
 by the Constitution ; its friends, before the w^ar is over, will 
 probably be obliged to confess that it has done so. It has 
 .acted in good faith. It has acted under the pressure of an 
 extreme emergency. It has been sustained by a vast majority 
 of the people. Yet, for the Courts, we are taught, the Con- 
 stitution is the only law. 
 
 Must a Court, then, put itself in opposition to the Govern- 
 ment, and declare null and void important measures intended 
 for the defence of the nation, and received as such with accla- 
 mations by the people ? The Court would thus become, in the 
 eyes of the people, the champion of secession, the friend and 
 ally of rebellion and treason. Yet what other course is open, 
 if it be the right and the duty of the Judges to set aside, as 
 invalid, every act of the President or of Congress which ex- 
 ceeds the limits of their prescribed authority ? The Judiciary 
 is called the appointed guardian of the Constitution, — the 
 representative of its stability, its perpetuity. But should the 
 Court attempt to maintain this character, a contest between it 
 and other branches of the Government would be inevitable. 
 In this contest, if the Court be sustained by a considerable 
 party among the people, it will be virtually the leader of that 
 party, and the result may be civil war, not between North and 
 South only, but througliout the country, — not, surely, a con- 
 sistent or appropriate position for the Judiciary to hold. On
 
 A WRITTEN CONSTITUTION. 75 
 
 the other hand, if the Government be sustained by the people, 
 the decrees of the Court will be wholly disregarded ; it will 
 lose influence and respect, and with these, dignity and au- 
 thority. Already, as before stated, the Court in the begin- 
 ning of the war, attempted to set itself against the Govern- 
 ment, and its opposition was instantly swept aside by the 
 impetuous rush of events, of opinion and of passion. Its voice 
 could scarcely be heard amid the tumult and din of elemental 
 strife. As the war advances, the ability of the Court to check 
 the Government is not likely to increase. It will become evi- 
 dent to all men, indeed, that it is no check at all ; that judi- 
 cial is something very different in its nature from political 
 power, and that a judiciary must be judicial, or cease to exist. 
 
 What, then, is the authority and duty of the Supreme Court 
 to preserve and protect the Constitution ? Is it not by the 
 exercise of judicial power, just as it is the right and the duty 
 of the President to defend it by the exercise of Executive 
 power ? Judicial is and must be coextensive with Legislative 
 power, each acting in its own sphere, — the Legislature to make 
 laws, the Courts to interpret and apply them. Fundamental, 
 organic, political laws, establishing a form of Government, 
 "whether written or unwritten, are the Constitution of a State; 
 they are the birthright of a people, their established manner 
 and rule of living as a nation, and are of so high and import- 
 ant a nature, that in every system they are either expressly 
 or impliedly excepted out of the ordinary powers of the Legis- 
 lature. The Legislature ought 7iot to alter them, except for 
 grave and obvious reasons, and with the assent of the people, 
 given either expressly by votes or impliedly by silence, — by 
 acquiescence, by the press, and other official and unofficial 
 organs. These are the general principles of all free Govern- 
 ments. Our ancestors intended to embody them in the Con- 
 stitution. They were stated with clearness and force by Vattel, 
 before the Constitution was written. 
 
 "The Constitution of a State ought to be fixed; and since 
 that was first established by the nation, which afterwards
 
 76 THE TRIAL OF THE CONSTITUTION. 
 
 trusted certain persons with the legislative power, the funda- 
 mental laws are excepted from their, commission. . . . Legis- 
 lators derive their powers from the Constitution. IIow, then, 
 can they destroy it without destroying the foundation of their 
 authority? By the fundamental laws of England, the two 
 Houses of Parliament, in concert with the King, exercise the 
 Legislative power; but if the two Houses should resolve to sup- 
 press themselves, and to invest the King with the full and ab- 
 solute Government, certainly the nation would not suffer it. 
 And who can presume to say they would not have the right to 
 oppose it ? But if the Parliament entered into a debate on 
 making so considerable a change, and the Avhole nation was 
 voluntarily silent upon it, this would be considered as an ap- 
 probation of the act of its representatives."* 
 
 In England there is no legal bar to the power of the Legis- 
 lature. But in any Government, when a change is required 
 by necessity and demanded by public opinion, it will be made, 
 for self-preservation dispenses with all laws and forms, and 
 every Government is and must be invested by nature with 
 power sufficient to accomplish the end of Government, which 
 is the public safety. Every Government, also, has and must 
 have sufficient power to satisfy the majority of the people, for 
 the power of the Government is the power of the people. In 
 the case supposed, of an infringement of the Constitution de- 
 manded by necessity, honestly made, and acquiesced in by the 
 people, what is the duty of the Supreme Court ? We have 
 already shown that practically it has no power. Is it never- 
 theless bound to set itself in opposition to the Legislature and 
 the people ? 
 
 This (question is answered by determining what, imder such 
 circumstances, would be the duty of the Legislature. Judicial 
 power is, all agree, coextensive with Legislative power. Ju- 
 dicial duty is therefore coextensive with Legislative duty, for 
 duty is forever cou])led with power. Whatever, therefore, it 
 is the duty of the Legislature to do, it is the duty of the Ju- 
 diciary to assist in doing. AVhatever laws it is the duty of the 
 
 * Vattel, ch. 8, | 34.
 
 A WRITTEN CONSTITUTION. 77 
 
 Legislature to pass, it is the duty of tlie Courts to interpret 
 and apply, according to the -will of the former. Now, our 
 Constitution is new ; it has gone through no perils to test and 
 try its strength and capacity for the work it was intended to 
 perform. Should it happen that the powers granted to it by 
 the Government are insufficient to meet a dangerous crisis, 
 what ought the Government to do ? Exercise the requisite 
 power and save or try to save the nation, or hold its hand 
 and let the Constitution and the nation perish ? Wait until 
 the intricate machinery of the fifth article can be put in ope- 
 ration, whilst the voices of the people, demanding instant ac- 
 tion, are thundering through the land, or assume and wield at 
 once all their power, reserved or other, to maintain its autho- 
 rity and defend its flag ? 
 
 There can be but one answer to these questions, if the Con- 
 stitution was intended for the people, and if the Government 
 is the representative of the people of 1862, and not of the 
 people of 1787. The Government is a unit ; its duty as a 
 whole is to preserve itself and the nation. All the depart- 
 ments ought to act together for this supreme object. There 
 is no such thing as divided duty in a Government. If it be 
 the duty of the Legislature and the Executive to save the 
 country, it is absurd to say that to obstruct their efforts is the 
 duty of the Judiciary. Conflicting powers and duties, discord 
 and collision betAveen the departments, what are they but 
 anarchy within, sure to produce anarchy without, fatal to the 
 Constitution and disastrous to the country ? 
 
 "This Constitution and the laws made in pursuance thereof, 
 are the Supreme Law of the land." This may be said of the 
 Constitution and the laws of every free Government, as the 
 extract from Vattel, above given, proves. It applies just as 
 well to the English Constitution and laws, as to ours. As 
 before stated, it is evident, from the context of the clause in 
 which it is found, that it was meant to express and enforce the 
 relations between the General Government and the States, pe- 
 culiar to our system, by giving supremacy to the laws of that 
 Government. These words have been construed to invest the 
 Supreme Court with authority to set aside as invalid, not only
 
 tS THE TRIAL OF THE CONSTITUTION. 
 
 the Constitution and laws of the States, but Acts of Congress, 
 Avhic'h are inconsistent with the Constitution. Our argument 
 relates to the latter doctrine only, for about the former there 
 can be no dispute. Such is the language of the authorities, 
 and as already said, we bow to authority. It is of great im- 
 portance, however, at the present moment, to discover what 
 these authorities really decide, and wdiether they cover the 
 question now before the country ; whether it is the right or 
 the duty of the Court, in time of war and attempted revo- 
 lution, to interfere with the operations of the Government, 
 intended to maintain its power and sanctioned by the majority 
 of the people. 
 
 This question has never been presented to the Court, for 
 the circumstances that have given rise to it never before 
 occurred in our history. There never has been an occasion 
 when self preservation demanded that the Government should 
 overstep its limited powers. There never has been a time 
 when the Government avowedly and intentionally did exceed 
 them because they were found too limited for the emergency. 
 There never has been a time when the Government went be- 
 yond the Constitution, and was met on the frontier by an 
 almost universal burst of hearty approbation from the 
 people. The case is a new one. The authorities do not reach 
 it. The question of law, therefore, is open, and must be de- 
 cided by the general principles of our Constitution, and of all 
 Constitutions. 
 
 In all the cases heretofore decided, the violation of the 
 Constitution by Congress has been unintentional. They were, 
 therefore, within the legitimate scope of judicial power. It is 
 the province of the Courts to expound and interpret the laws 
 passed by the Legislature, according to the principles of legal 
 science, and according to the principles of the Constitution. 
 In the absence of clear proof to the contrary, the Court is to 
 presume that Congress does not mean to violate the Constitu- 
 tion. The Judges are "learned in the law." No such 
 learning is, either theoretically or practically, to be predicated 
 of Congress. Therefore, in declaring a law unconstitutional 
 and void, the Court carries into effect what it is bound to as-
 
 A WRITTEN CONSTITUTION. 79 
 
 sume to be the intention of the Legislature. It merely 
 corrects a mistake, which, it has a right to suppose, the 
 Legislature made through ignorance, and would be willing to 
 have corrected. 
 
 Such has been heretofore the history of our Supreme Court, 
 and such the mutual confidence and respect existing between 
 the Legislative and Judicial departments of our Government. 
 Where the Court has spoken. Congress has yielded. This 
 mutual deference is the duty of each. So long as it can be 
 maintained, the action of the Government will be regular and 
 harmonious, for it is the natural action of the two branches of 
 power, each in its appropriate sphere. Its happy results have 
 been the confidence and respect of the people, and cheerful 
 obedience to the decisions of the Court, until recent events 
 have impaired its influence. This misfortune has occurred 
 solely because the Court has departed, or is supposed to have 
 departed, from its legitimate orbit of duty and power, and 
 entered the dangerous and forbidden field of partisan politics. 
 No case has yet occurred where the Legislature has exceeded 
 intentionally its constitutional powers, with honest motives and 
 with the sanction of public opinion. The authorities already 
 referred to do not apply to such a case, and what the Court 
 may rightfully do, and ought to do, when it does occur, is a 
 question of constitutional law yet undecided. 
 
 Neither do the elementary writers, to whom we are aciJus- 
 tomed to look for guidance, afford us much light on the sub- 
 ject. The Federalist, Chancellor Kent and Judge Story refer 
 exclusively to three classes of cases, to which the conservative 
 and restraining power of the Judiciary is supposed to apply. 
 1st. Unintentional violations of the Constitution, which we 
 have already considered. 2d. The control of the Supreme 
 Court over the Courts of the States, about which there can 
 be no doubt ; and 3d. Criminal usurpation of power by the 
 Executive or Legislature, or a conspiracy by both to destroy 
 the Constitution and overturn the Government. In such a 
 case, the right and duty of the Judiciary is too plain for argu- 
 ment. The Judges surely may refuse to enter into a league 
 against the Constitution, or to become the instruments or allies
 
 80 THE TRIAL OF THE CONSTITUTION. 
 
 of revolutionists and traitors. On the contrary, they may and 
 ought to resist them with all the influence of their office, their 
 social rank, their talents and learning and eloquence. But 
 their resistance would be not that of Judges, but of citizens, 
 and they would use official weight and authority to defend the 
 Government, just as the capitalist would use his money, or the 
 people their fire-arms, or men of mark or eminence whatever 
 weight their position and character gave them. 
 
 Let us imagine a case similar to that mentioned by Vattel. 
 Suppose Congress, gained by corruption, or, overcome by 
 intimidation, should decree that a President, supported by the 
 mob or an army, should hold his office for life. This would 
 be not only a violation of the Constitution, but of the common 
 rights of the people, which every man in his sphere would be 
 entitled to resist, and the Courts, as the especial guardians of 
 the law, would be bound to do so, more than others. But let 
 us suppose that such an event should happen in the manner 
 also stated by Vattel. That the necessity for a change in the 
 Executive department had become obvious and had been de- 
 bated both in and out of Congress, before the people and by 
 the people. That a Presidential election, recurring at short 
 intervals, had been found destructive to order and dangerous 
 to the stability of the Government. That a deliberate and 
 matured public opinion demanded the alteration, although the 
 exj^eriment of making it according to the fifch article was 
 deemed too hazardous, because it would produce the very 
 dangers which the change itself was intended to avoid. Let 
 us suppose the change made. That the people acquiesced. 
 That it worked well ; and that after years of peaceful and 
 prosperous establishment, a "case" should arise, which brought 
 the question of constitutionality before the Supreme Court. 
 Imagine a venerable Chief Justice delivering such an opinion 
 as this : 
 
 "The right of the "plaintiff" to recover in the present action 
 arises out of an official act of the Executive. We are asked 
 by the counsel for the defendant to declare that act null and 
 void, because the law of Congress, by which the official term 
 of the President was altered from one of four years to one for
 
 A WRITTEN CONSTITUTION. 81 
 
 life, was unconstitutional. That law was passed after long 
 and anxious deliberation. The most enlightened opinion, the 
 sober and well-considered judgment of the people had demanded 
 a change, to avoid the constantly recurring perils of a Presi- 
 dential election, by which, as experience had fully proved, the 
 passions and strife of parties are liable to become so excited 
 as to endanger periodically the public peace and the stability 
 of the Government. The alteration thus made in a part of 
 the Constitution has proved eminently successful. The people 
 have been satisfied, and have prospered under the new law 
 and under the able ride of the illustrious man at the head of 
 the nation. Ten years of tranquil success at home and re- 
 spect and glory abroad, have justified the action of Congress 
 and the wishes of the people. Ten years have elapsed, and 
 no case until the present has called for the judgment of the 
 Court on this grave subject. We could have wished that no 
 case had arisen, but we cannot shrink from our duty. This 
 Court can look only to the Constitution, and to the intention 
 and meaning of our ancestors in 1787, by whom it was made. 
 It is too clear for argument that Congress exceeded its power 
 by extending the term of the Executive office. The alteration 
 was honestly made, no doubt. It has been eminently success- 
 ful for ten years, and the people have been satisfied. But 
 neither an act of Congress, nor lapse of time, nor the wishes 
 of the people, unless expressed according to the Fifth Article, 
 nor custom, nor prosperity, nor success, can alter the Consti- 
 tution, except in the way appointed by itself. The Consti- 
 tution is the supreme law. This Court is bound by it, and we 
 are therefore constrained by the stern demands of duty re- 
 luctantly to declare, that the act of Congress in question was 
 void and of no effect ; that the acts of our respected, so-called, 
 Chief Magistrate are also void ; that he has no legal power 
 whatever ; that, indeed, we have no President or Chief Magis- 
 trate at all." 
 
 Now what would be thought of such an opinion as 'this 
 under the supposed circumstances ? Would it not coven the 
 Court with contempt? Would it have any influence what-
 
 82 THE TRIAL OF THE CONSTITUTION. 
 
 ever on the President, or Congress, or on the people, unless 
 indeed it might stimulate factious opposition to the Govern- 
 ment ? Yet it would be law, according to the generally re- 
 ceived opinion that the Constitution is a finality, and that the 
 Judiciary is its special guardian, invested with political power 
 to keep the other departments Avithin their prescribed limits. 
 
 Such a doctrine must in the end destroy the Judiciary. 
 The people will not bear a political power which is independent 
 of their control. If the Judiciary exercises such power, it 
 must become representative, which is the nature of all political 
 power under free institutions. A branch of the Government 
 which can dictate to the Legislature is legislative. It ceases 
 to be a Judiciary, the essence of which is impartiality and 
 freedom from external influence. A branch of the Govern- 
 ment which to-day represents the opinions of the dominant 
 party, and to-morrow represents the same opinions when that 
 party has ceased to be dominant, cannot long exist in a de- 
 mocracy. The people Avill soon demand that it too shall sub- 
 mit to the ballot-box. The duty of the Judiciary is to carry 
 out and apply to private rights the laws made by the Legis- 
 lature, which is the creature of the ballot-box. In this con- 
 sists the real impartiality of the Courts, for they are thus 
 indifferent to all parties, being indirectly the instrument of 
 any that may happen to rule. But if the judges may control 
 the Legislature, they become at once the opponents of a suc- 
 cessful and the organs of a defeated party. The people will 
 say they are no longer judges, but party leaders, and like 
 other party leaders, must become the instruments of the 
 popular will. 
 
 The Courts have a nobler and higher part to play than this. 
 They ought to exert the moral influence which springs from 
 character, from talents, from learning, and from a dignified 
 and important station. In any healthy condition of the Go- 
 vernment, their opinions must have great weight Avith the 
 Legislature and with the people, so long as they display quali- 
 ties , which entitle them to respect, and keep within their 
 legitimate sphere. But they cannot depart from that with 
 safety. If they are once drawn within the maelstrom of party
 
 A WRITTEN CONSTITUTION. 83 
 
 politics, the days of the Judiciary arc numbered and the days 
 of the Constitution too. 
 
 But Tve are wandering from the point under discussion. In 
 the case supposed above, or in any case likely to be presented 
 by the present war, might not the Court give some such 
 opinion as this : 
 
 "We are asked to set aside an act of Congress, on the 
 ground that it is unconstitutional. It is not a case of doubt- 
 ful construction from which it can be inferred that Congress 
 were mistaken as to the law, and therefore, that by correct- 
 ing that mistake, the Court would be carrying out, what it 
 must presume to have been, the paramount intention of the 
 Legislature. If Congress have exceeded their powers in this 
 instance, they have done so deliberately and purposely. 
 Neither is it a case of corrupt and criminal usurpation of 
 power to which the Court might refuse to be a party, and 
 which it would be entitled, like every other officer of Govern- 
 ment, to resist. It is conceded that the prescribed limits 
 have been overstepped by Congress, from honest motives, 
 under the pressure of urgent necessity, to save the nation 
 from great and imminent danger, and that the course pursued 
 has received the sanction of the great majority of the people. 
 No such case has heretofore occurred in the history of the 
 country. No such case has been presented to this Court. We 
 must, therefore, in considering it, be guided by those funda- 
 mental principles of Government upon which every Constitu- 
 tion is founded, and which, therefore, it is fair to infer, guided 
 our ancestors in constructing ours. 
 
 " That every Constitution, made by fallible human beings, 
 must, in time, require alteration to correct its errors and to 
 meet the varying wants and opinions of the people, is a truth 
 of political science, or rather an axiom, which no argument is 
 needed to demonstrate. Our fathers recognized it, and made 
 it the basis of a separate article in the Constitution. It is 
 therein provided that the Constitution may be amended by the 
 people. That it may be amended by persons representing 
 the people. That, when amendments are made, they may be 
 ratified by the consent and approbation of the people. This
 
 84 THE TRIAL OF THE CONSTITUTION. 
 
 was the general purpose intended to he accomplished by the 
 Fifth Article. 
 
 " It is a purpose which must not be permitted to fail, for 
 when necessity requires an alteration, it will and must be 
 made, either under and by virtue of the Constitution, or over 
 its ruins. Shall the Government obey this commanding truth 
 of all politics ? Sliall it carry into effect the obvious and para- 
 mount intention of the makers of the Constitution, or shall 
 it disregard that truth and deny fulfilment to that intention, 
 because certain forms of procedure, contrived to realize both, 
 are too intricate and difficult to be followed in practice ? 
 
 " That is not a just rule for the construction of any law. The 
 end is more important than the means, the substance than the 
 form. If necessary, form and means must be sacrificed to 
 substance and end. So ought it to be, even if the Consti- 
 tution expressly declared that it could be altered only accord- 
 ing to the prescribed forms, which it does not. 
 
 " All that those forms were intended to accomplish has been 
 accomplished in the case before us. The Constitution has 
 been altered. It was altered by the representatives of the 
 people, and because a change was needed. The change has 
 been ratified by the people. Shall we sacrifice this valuable 
 substance, for the sake of forms which cannot be observed, 
 and permit those forms, intended for a prudent restraint, to 
 become an insurmountable bar to the action of the people ? 
 
 " Reason, experience and a just estimate of the condition of 
 the country show clearly that the process appointed b}'' the 
 Fifth Article for altering the Constitution cannot be relied on. 
 It is too cumbersome to meet a sudden emergency, it requires 
 an impossible combination of action and opinion, and its 
 operation would hazard the public peace and the safety of the 
 Government. For these reasons it is improbable that a resort 
 to it will ever be had ; it is certain that it cannot be used 
 when it may be most needed. We are then reduced to this 
 alternative: either the Constitution can never be amended, or 
 the Fifth Article must be disregarded. Shall we not say of 
 it, therefore, that if intended to be imperative and exclusive, 
 it was a mistake ; that it must become obsolete and expire by
 
 A WRITTEN CONSTITUTION. 85 
 
 non-nser ; tliat it is useless ; that what cannot be used has 
 practically no existence, and that we must carry out in some 
 other way the intention of the founders, and the natural law 
 of every Constitution. 
 
 " This can be done only by Congress. It is their duty to 
 maintain the authority of the Government, and to provide for 
 the well-being and safety of the nation. If for these purposes 
 it becomes necessary to alter or to transcend the Constitution, it 
 must be assumed that the people intended 4;o invest the Legis- 
 lature with power to do so. A Government without power to 
 protect itself or the people, is not a Government. It is the 
 duty of Congress to take the responsibility of exerting all the 
 powers of the people for the sake of these paramount objects. 
 If the people are satisfied, no one has a right to complain. 
 The Constitution belongs to them, not to their ancestors. If 
 the people are dissatisfied, they have an effectual remedy in 
 the ballot-box. What it is the duty of Congress to do, it can- 
 not be the duty of this Court to restrain them from doing,, 
 even if it had the ability, which it has not. 
 
 " This Court is invested by the Constitution with judicial 
 power only. It has never exercised any other. To set aside 
 an act of the Legislature would be, not an exertion of Judicial, 
 but of Legislative authority. Our province is to interpret the 
 laws, not to make them or to repeal them. 
 
 "But for the Fifth Article, Congress, like an English Parlia- 
 ment, would be, in a legal sense, omnipotent. The Fifth Ar- 
 ticle was intended to enforce what is alike the duty of Parlia- 
 ment and of Congress, — reverence for the Constitution, caution 
 in making alterations, respect for the wishes of the people, 
 ultimate obedience to their will. These conditions have all 
 been complied with in the case before us. Substantially, the 
 Fifth Article has been obeyed. Its forms only have been dis- 
 regarded. Because they have been found useless, they have 
 been treated, for reasons already given, as having no existence. 
 Congress, therefore, like an English Parliament, is omnipo- 
 tent." 
 
 To this complexion we must come at last ; and in view of 
 such a logical as well as practical necessity, it is well to con-
 
 86 THE TRIAL OF THE CONSTITUTION. 
 
 siclci- the position of the Judiciary in the English Constitution. 
 It is Avorthy of remark, that whilst Avith us political power is 
 attributed to the Supreme Court, the English Judges have far 
 greater influence than ours over the conduct of the Govern- 
 ment. The Lord Chancellor is a member of the Cabinet, and 
 Speaker of the House of Lords. The Chief Justice of the 
 Queen's Bench is a member of the Privy Council, and, with 
 the other Judges, has a scat in the House of Lords. They do 
 not vote. They are there to be consulted on questions of law, 
 and constantly are consulted. The influence, therefore, of the 
 Judiciary is constant and preventive, yet it is strictly judicial. 
 It advises the Legislature and Executive on points of law, and 
 is ever present to give advice. It has no power. In our sys- 
 tem the Judiciary cannot be consulted, it cannot give advice. 
 It has nothing to do with Congress or with the President, who 
 cannot avail themselves of its knowledge and wisdom, however 
 much they may be needed. It sits apart in " coequal and co- 
 ordinate" dignity, — truly a separate Department, inactive amid 
 surrounding perils and difiiculties. These it must not lend its 
 aid to avoid ; but if it act at all, can act only after they have 
 been encountered. It is a silent oracle which can never be 
 consulted until it is too late, and like the stern-lights of a ship 
 throws its radiance, not on the breakers ahead, but on the 
 wake. As already said, it is a matter of accident whether the 
 Courts can ever speak at all, however important the question 
 may be that requires their interference, or they may be en- 
 abled to speak only after the question has been long and peace- 
 ably settled ; for they can gain a voice only by the happening 
 of a "case." In England, when a constitutional (i[uestion 
 arises, — that is, a question as to the law and custom of Parlia- 
 ment, — it is referred to the "Law Lords." Parliament may 
 thus avoid an unintentional violation of the Constitution. 
 
 It follows necessai-ily, from the doctrine that Parliament is 
 omnipotent, that its laws cannot be annulled by the Courts ; 
 for that, Blackstone says, "Avere to set the Judicial power 
 above that of the Legislature, which tvoidd he subversive of all 
 government.''* An act of Parliament is the highest authority 
 
 * 1 Blackstoiic's Comiu., 91.
 
 A WRITTEN CONSTITUTION. 87 
 
 that the Kingdom acknowledges on earth. But the Courts 
 will always endeavor to give a reasonable construction to a 
 statute, and will not suppose that the Legislature intended to 
 commit injustice or violate established rights.* Wherever, 
 therefore, the meaning of the law can admit of doubt, it will 
 be construed in favor of those rights. And notwithstanding 
 the logical consequences of the theoretically absolute power of 
 Parliament, the authority of the Courts to declare void acts 
 against common right and reason has been too often asserted, 
 at various periods of English history, to be Cjuestioned. "If 
 a statute," said Lord Coke, "be against common right or rea- 
 son, or repugnant or impossible to be performed, the Common 
 Laiv shall control it and adjudge it to be void; but the Judges 
 will not hold a statute to be void unless it be clearly contrary 
 to natural equity, for they will strain hard rather than hold a 
 statute to be void."f Other eminent judges have approved 
 this opinion ;| and there can be no doubt that, should a case 
 arise of a criminal usurpation of power or a flagrant violation 
 of the Constitution like that cited above from Vattel, mani- 
 festly against the wishes of the people, the Courts would re- 
 fuse to sanction such an act, and thus become the allies of 
 conspirators and traitors to their country. 
 
 It happens, therefore, that unless our Constitution has vio- 
 lated the laws of nature by conferring political power on the 
 Judiciary, and by appointing weakness to control strength ; 
 unless it is to be regarded as practically unalterable under the 
 stress of any dangers and necessities, however urgent, and is 
 thus a fetter on the free action and wishes of the people for- 
 ever, there is no difference between the functions and province 
 of the English Courts and of ours. Both interpret the laws 
 passed by the Legislature, according to the Constitution ; 
 both may and ought to resist injustice and criminal designs on 
 the part of the Legislature ; and both, when no such iniquity 
 can be imputed to the Legislature, and its meaning is clear, 
 
 * 1 Kent's Comm., 419. 
 
 f 1 Blackstone's Comm., 91. 
 
 X 1 Kent's Comm., 420.
 
 88 THE TRIAL OF THE CONSTITUTION. 
 
 must submit to its powei* and become the instruments of its 
 will. The difference between them is, that whilst our Judiciary 
 is tied hand and foot, until released by a "case," and can 
 never speak at all until a law be passed, the English judges 
 exercise upon the course of Government, a conservative, pre- 
 ventive influence that never sleeps. 
 
 This moral influence is the only sort of poAver over Govern- 
 ment which belongs to the Judiciary, or is consistent with its 
 dignity, usefulness, or existence. It is the legitimate SAvay 
 of learning, of talents, of high character and official rank. 
 Such ascendency the Judges must always possess in the nor- 
 mal and healthy condition of the Government. The opinion 
 of the Court ought to be received with deference by the Legis- 
 lature, whose duty it is to preserve the Constitution inviolate, 
 whilst it can be preserved. The opinion of the Court will be 
 respected by the people, so long as they are able to appreciate 
 the blessings of free institutions, and so long as the Court 
 keeps within its legitimate sphere. Such has ever been our 
 experience. The judicial power has been exercised by the 
 Supreme Court of the United States with eminent virtue and 
 distinguished ability. Its labors have settled many important 
 questions which necessarily arose under a new system, and it 
 has built up a code of national jurisprudence, which Chancellor 
 Kent justly described as a "solid and magnificent structure," 
 on the broad basis of the Constitution. It has done this 
 through more than half a century of prosperity. It has never 
 passed through times which try men's souls, and try also the 
 virtue and strength of organic laws. It has never had to deal 
 with sedition, privy conspiracy, and rebellion, in battle array 
 against the authority of the Government. The time has come 
 when the true position of the Judiciary must be determined, 
 and it will be determined, not by the language of the Consti- 
 tution or the construction that has been put upon it, but by 
 natural laws, Avhich every Constitution must obey or perish. 
 
 It is easy to see that the formidable rebellion which now 
 disturbs the country cannot be quelled without the exercise of
 
 A AV KITTEN CONSTITUTION. 89 
 
 powers doubted and denied by an influential party. It is true, 
 indeed, that they are not doubtful according to a liberal and 
 enlarged construction of the Constitution, or according to its 
 spirit, and what must have been the intention of those who 
 made it, or according to the best writers on the science of 
 jurisprudence. That a nation is under an obligation to pro- 
 tect itself, and that its government has a right to use all mea- 
 sures necessary for the purpose ; that the public safety is the 
 supreme law, and that necessity supersedes all law, are prin- 
 ciples of all governments, which if limited in their action by a 
 written Constitution, the limits imposed must be construed to 
 apply to periods of peace and tranquillity. 
 
 But this doctrine is denied by those who assert that the 
 Government, being one of enumerated and limited powers, has 
 no authority not expressly granted by the Constitution ; that 
 it cannot look outside of that instrument to any source for 
 implied powers ; that more especially it cannot do anything 
 which the Constitution expressly forbids ; that if the nation 
 cannot be saved according to the forms of the Constitution, it 
 cannot be saved at all ; and that it is the right and duty of 
 the Supreme Court to declare null and void every act of Go- 
 vernment which exceeds the prescribed limits. The Constitu- 
 tion is thus invoked for the protection of those who are in 
 arms against its authority. 
 
 The Government has thought fit, since the commencement 
 of the war, to suspend the writ of Habeas Corpus, to arrest 
 persons suspected of treasonable designs and practices, to 
 exercise a control over the press. There are plans before 
 Congress, which may be carried into effect, for confiscating 
 the property of rebels, even for emancipating the slaves of the 
 South, should the exigencies of the war render so extreme a 
 step expedient. By the party opposed to the Administration 
 all these measures are denounced as unconstitutional. They 
 are so, according to the letter of the law. They are so, if 
 the Constitution be construed to exclude those necessary prin- 
 ciples Avhich are the natural and therefore paramount laws 
 of all Governments, and essential to their salvation. Very ' 
 probably the Courts may also consider these proceedings
 
 90 THE TRIAL OF THE CONSTITUTION. 
 
 unconstitutional, and may undertake to set them aside as void. 
 If void, tliej are of no binding autliority over the people. 
 The people Avould thus, in the midst of civil war, be released 
 from all obligation to obey the Government. 
 
 In the last number of the Federalist, Mr. Hamilton declared 
 that " a ng-tion without a National Government is an awful 
 spectacle !" Such was this nation under the old Confederacy. 
 The object of the Constitution was to give it a Government. 
 But a Government divided against itself, with its authority 
 legally resisted by one of its own departments, which thus 
 becomes virtually the ally of rebels, banded against its exis- 
 tence, is no Government at all, for it has no power to protect 
 itself or the nation. 
 
 Alterations of the Constitution may be either extensive and 
 sudden, or minute and gradual. The former involve changes 
 of the form and character of the Government, and are not 
 likely to be made in ours, founded, as it is, on correct principles, 
 and well suited to the genius and character of the people. 
 Great changes, such, for example, as that of a republic into a 
 monarchy, if they ever occur, will be brought about by a 
 revolution, unless that can be averted by the machinery of the 
 Fifth Article. But there are other alterations, the result of 
 time and experience, revealing small defects, or made under 
 the influence of transient causes, and which thus become 
 established as precedents. It is highly important that the 
 Constitution may be capable of being thus gently and imper- 
 ceptibly moulded to suit the wants of the people, and that 
 power to meet every emergency as it arises may be imparted 
 to the Government. Is the Constitution elastic enough for 
 such a purpose, or is it a rigid chain Avhich must be broken 
 because it cannot be stretched ? Does the Constitution con- 
 tain no clauses, from which it may be inferred, that, although 
 the Fifth Article was intended to be used, if possible, for im- 
 portant and organic amendments, yet that others of a less 
 serious character may be made by the Government itself, as 
 experience shows them to be needed ?
 
 A WRITTEN CONSTITUTION. 91 
 
 Alterations of this nature have ah'eady been made. They 
 have been accepted by the people, and from the natural 
 tendency of a Constitution to become custom, are now 
 established as law. The Constitution provides that the Presi- 
 dent shall be chosen by electors, elected by the people. The 
 object Avas to avoid a direct vote of the people. This object 
 was immediately defeated by the simple expedient of choosing 
 electors pledged to support a particular candidate. The pre- 
 scribed form has been observed, but it has been made to serve 
 a purpose, the very opposite of that for which it was intended. 
 The Constitution gives to the President the power to nomi- 
 nate, and, by and with the advice and_consent of the Senate, 
 appoint all officers of the United States. It was intended, as 
 appears from the contemporary exposition in the Federalist, 
 that he should also remove all officers, by and with the advice 
 and consent of the Senate.* Nevertheless, it was imme- 
 diately determined by the Legislature, that the President 
 should have the sole and independent power of removal. 
 This construction had the effect of defeating the second clause 
 of Section 6, Article 1, which declares that " no member of 
 Congress shall, during the time for which he was elected, be 
 appointed to any civil office under the authority of the United 
 States, which shall have been created, or the emoluments 
 thereof shall have been increased during such time ; and no 
 person holding any office under the United States, shall be a 
 member of either House during his continuance in office." 
 Offices created, or the emoluments of which are increased 
 during the term, are necessarily few in number. So also are 
 those becoming vacant by death or resignation. But any 
 number of vacancies may be created by removal, and thus 
 Congress may be subjected to the whole force of Executive 
 patronage. No power to acquire foreign territory is ex- 
 pressly granted to the Government by the Constitution, yet, 
 in 1803, Louisiana was purchased, and a tract of country 
 added to the nation, larger than the whole when the Constitu- 
 tion was made. 
 
 * Federalist, No. 77.
 
 92 THE TRIAL OF THE CONSTITUTION. 
 
 These were all-important measures. They were all de- 
 partures from the meaning of the Constitution, and from the 
 intention of its founders. They have given shape, direction 
 and character to the Government, and will control its history. 
 Who can measure the influence which has been, and will be, 
 exerted on the destiny of the nation, by the quadrennial 
 election, directly by the people, of a President who Aviclds the 
 enormous power of Executive patronage as now exerted? 
 Compared with the Executive department intended by the 
 Constitution, is not the office, now, in everything but the 
 name, an elective monarchy ? The precedent set by the 
 purchase of Louisiana, was followed by that of Florida ; that 
 by annexation of Texas, which led to the Mexican Avar, and 
 the acquisition of ISTew Mexico and California. With Louisi- 
 ana we acquired Kansas, and with Kansas, the germ of the 
 present rebellion, which threatens to destroy the Union. 
 
 Yet, all these momentous acts were the work of the people, 
 or of Congress with the consent and approbation of the 
 people, given not according to the Fifth Article. What has 
 been done, may be done again, and may be done legally, for 
 in all law, constitutional or other, precedent is authority. 
 
 The powers of Government must be coextensive with its 
 objects, and these are so numerous and so much the result 
 of causes which cannot be foreseen, that a Constitution con- 
 ferring expressly enumerated powers only, is an impossibility. 
 To provide for the future would require a voluminous treatise, 
 and it would be incomplete, unless new volumes Avere con- 
 stantly added. General powers only can be granted, general 
 limitations only imposed, and power must be given, expressly 
 or impliedly, to meet those emergencies that time only can 
 disclose. By our Constitution, this has been done expressly. 
 In Section 8, Art. 1, certain enumerated powers are conferred 
 upon Congress ; and the list closes by investing them with 
 authority " to make all laAvs which shall be necessary and 
 proper for carrying into execution the foregoing powers, and 
 all other poAvers vested by this Constitution in the Govern-
 
 A WRITTEN CONSTITUTION. 93 
 
 ment of the United States, or in any department or officer 
 thereof." 
 
 i!Tow, the powers vested in the Government are Legislative, 
 Executive and Judicial, each acting in its appropriate sphere. 
 The accomplishment of the purpose for which the Constitution 
 was made, is the legitimate " carrying into execution " of those 
 powers. That purpose, the Constitution itself declares, Avas 
 "to form a more perfect Union, establish justice, insure 
 domestic tranquillity, provide for the common defence, promote 
 the general welfare, and secure the blessings of liberty to our- 
 selves and our posterity." Congress has power, therefore, to 
 pass all laws "necessary and proper," that is to say, ex- 
 pedient and conducive to the attainment of these objects. 
 
 These principles are sustained by the best authorities. 
 The Federalist (No. 33), in reference to the clause in the 
 Constitution quoted above, says : " But it may be asked, 
 who is to judge of the necessity and propriety of laws passed 
 for executing the powers of the Union ? I answer, first, that 
 this question arises as well and as fully upon the simple grant 
 of those powers as upon the declaratory clause ; and I answer 
 in the second place, that the National Government, like every 
 other, must judge in the first instance of the proper exercise of 
 its powers, and its constituents in the last. If the Federal 
 Government should overpass the just bound of its authority, 
 and make a tyrannical use of its powers, the people, whose 
 creature it is, must appeal to the standard they have formed, 
 and take such measures to redress the injury done to the Con- 
 stitution as the exigency may suggest and prudence justify." 
 
 In this it is implied that should the Government overpass 
 the bounds of its authority, with honest intentions and with 
 the consent and approbation of the people, its conduct would 
 be thus ratified by the only power entitled to call it in ques- 
 tion. Thus sanctioned, the act of the Government becomes 
 precedent, becomes law. And what is that law ? Simply 
 this, in Hamilton's own words : "• The Government must 
 judge, in the first instance, of the proper exercise of its powers, 
 and its constituents of the last." This is the law of England. 
 In No. 34, Mr. Hamilton, discussing the same clause, speaks
 
 94 THE TRIAL OF THE CONSTITUTION. 
 
 thus. " In pursuing tlie present inquiry, we must bear in 
 mind that we are not to confine our view to the present period, 
 but to look forward to remote futurity. Constitutions of civil 
 government are not to be framed upon a calculation of existing 
 exigencies, but upon a combination of these with the probable 
 exigencies of ages according to the natural and tried course of 
 human affairs. Nothing, therefore, can be more fallacious 
 than to infer the extent of any power proper to be lodged in 
 the National Government, from an estimate of its immediate 
 necessities. There ought to be a capacity to provide for future 
 contingencies as they may happen ; and as these are illimitable 
 in their nature, it is impossible safely to limit that capacity." 
 Evidently this great statesman, who helped to make the Con- 
 stitution, did not consider it a finality, to be altered only 
 according to the forms of the Fifth Article. Clearly, in his 
 opinion, the clause under discussion, granted to Congress, 
 where those forms cannot be observed, sovereign powers to do 
 whatever circumstances may render necessary, subject only to 
 the subsequent assent of the people. The opinion he expressed 
 in the same work already quoted, in reference to the power of 
 the Supreme Court, must be regarded as modified and limited 
 by these principles. 
 
 By the Articles of the old Confederation, the Government 
 was prohibited the exercise of any powers not expressly granted. 
 In the Tenth Article of the Amendments to the Constitution, 
 the word expressly is omitted. By this Article, all powers 
 not delegated to the Government are reserved to the people, 
 and coupled with the clause granting general powers, already 
 quoted, the best writers agree that a very large measure of 
 implied power is conferred. All branches of the Government, 
 the Judiciary included, have shown a disposition to increase 
 rather than diminish this power by a liberal construction of 
 the Constitution.* 
 
 A great mass of incidental and resulting authority has been 
 exercised by the Government, which has been sanctioned by 
 the Courts and by the people. A national bank, a protective 
 
 * Story on the Coustitution, ch. 5 and 24 ; 1 Kent's Comm., 236-248.
 
 A AVRITTEN CONSTITUTION. 95 
 
 tariff, the right to make internal improvements, to acquire 
 foreign territory, to govern it when acquired, to lay an em- 
 bargo on commerce, to pass alien and sedition laws, and other 
 acts of government, were all denounced as the exercise of 
 authority not expressly granted, and have all passed into the 
 domain of implied power, so far as anything can pass out of 
 doubt into certainty, under our Constitution,- a thing impossi- 
 ble, according to the construction given to it by some, who 
 have no small influence over its fate. 
 
 The result of these examples and authorities is, that the 
 Government may exercise not only power expressly granted, 
 but all powers not expressly prohibited by the Constitution. 
 But the arguments by Avhich implied power is attributed to 
 Government, sustain also the position that it must have 
 sovereign and absolute power even over the Constitution. 
 This arises, to quote the language of Mr. Madison, in the 
 Federalist (No. 43), from " the absolute necessity of the case; 
 from the great principle of self-preservation ; the transcendent 
 law of nature and of nature's God, which declares that the 
 safety and happiness of society are the objects at which all 
 political institutions aim, and to which all such institutions 
 must be sacrificed. 
 
 Whenever these great objects are in danger, the Govern- 
 ment may, and unless false to its trust, always Avill overstep 
 the limits of the Constitution to preserve them. What a 
 Government can do, and ought to do, is the law of that 
 Government ; the supreme law, to which its Constitution must 
 be made to conform. Moreover, whatever the Government 
 thus does, if afterwards ratified by the sentiments and votes of 
 the people, is, for that reason also, the law, whether the thing 
 done was absolutely essential to the purpose or not, for the 
 question of necessity is one not of law, but of fact. 
 
 The people of this country have prospered under the Con- 
 stitution. They have enjoyed the blessings of security, order, 
 and liberty. They have advanced rapidly in wealth and in all 
 the arts and culture of civilization. They, therefore, justly
 
 96 THE TRIAL OF THE CONSTITUTION. 
 
 regard the Constitution with reverence and affection. It is 
 impossible to over-estimate its value, or to encourage too 
 earnestly those sentiments which may preserve it from the 
 rude touch of experiment or rash innovation. But, that it 
 may endure, it must be capable of alteration, when an altera- 
 tion is needed, otlicrwise it Avill be destroyed ; for a Constitu- 
 tion that cannot be changed for the people, and by the people, 
 must, the moment it is felt as an obstruction, be swept aAvay 
 by the force of opinion, and the march of events. Should it 
 yield to these, its original plan and proportions may be pre- 
 served, though it may be gradually modified in parts and sub- 
 ordinate details. It may be thus modified, if our reasoning be 
 correct, without violating its spirit, its essential character, or 
 the intention of its founders. 
 
 In a war like the present, when all the elements of discord 
 are let loose, when no man can foresee from what source 
 dangers may arise, or what now dormant forces of passion 
 may be roused, the power of Government must be maintained, 
 or every interest of society may perish in a raging sea of vio- 
 lence and anarchy. An excited people in the midst of civil 
 war, without a Government, — who can describe the manifold 
 horrors and miseries of such a condition ? Those who are noAv 
 assailing the Administration for violating the Constitution, 
 and endeavoring to weaken its authority, would do well to 
 think of this. If they can succeed in their schemes, the Con- 
 stitution for which - they profess so much respect, will soon 
 cease to exist, and the Avar they deprecate, will speedily be 
 brought with added terrors to their own homes. 
 
 The Constitution belongs to the people, — to the people of 
 1862, not to those of 1787. It must and will be modified to 
 suit the wishes of the former, by their representatives in Con- 
 gress, just as the English Constitution has been modified by 
 Parliament, or it will be destroyed. The great danger to our 
 Constitution arises not from its pliability, but from its rigid 
 resistance to change. It may be thought, by some, that it 
 would run greater risks if committed to the caprice of the 
 multitude, or to such a Legislature as the multitude elects. 
 But these perils must be encountered in a republic. If the
 
 A WRITTEN CONSTITUTION. 97 
 
 people cannot preserve the Constitution, it must perish, for it 
 cannot be preserved by the Judiciary. The only reliance in a 
 popular Government is on the intelligence of the people, which 
 in our country is so great as to inspire just confidence in the 
 future. 
 
 We have not, indeed, an established church, an hereditary 
 throne and a landed aristocracy, elements which have given 
 so much strength and stability to the English Government. 
 But even in England, those resisting forces have exerted far 
 more influence in the past than they do at present. They 
 were powerful when Avealth consisted chiefly of land, when 
 knowledge was confined to the clergy, and Avhen Government 
 was alternately threatened by the violence of a rude nobility, 
 and by the rage of the ignorant masses. But the tendency of 
 civilization is to produce equality, both of fortune and intelli- 
 gence. Commerce and manufactures in England now guard 
 the Constitution as eifectually as the land did before, and en- 
 lightened public opinion, wielding the sceptre of a free press, 
 wears a crown more mighty than a king's, and overshadows, 
 whilst it protects, a nominal throne. 
 
 We have land enough in our country to insure controlling 
 power to its owners, and the conservative influences of land do 
 not depend on the rank or title of those who possess it. Our 
 rapid prosperity has, in the Northern States, accumulated 
 a vast capital in trade, manufactures, and the mechanic arts, 
 in banks, railroads, and canals. We have great cities and 
 flourishing towns. Property exists, not only in masses owned 
 by individuals and corporations, but it is spread abroad through- 
 out society, and with it also is spread the love of material 
 prosperity, of industry and of business, to an extent unex- 
 ampled in the world or the world's history. All these demand 
 order and stability, and exert a powerful influence in their 
 favor. Knowledge is difiused among the people even more 
 widely than property. It has a free press for its organ and 
 instrument. Opinion rules here as it does in England. Opinion 
 can change the English Constitution, can also secure it from 
 change, and therefore it is safe. On these conditions only can 
 
 7
 
 98 THE TRIAL OF THE CONSTITUTION. 
 
 our Constitution be safe, for opinion, if it cannot change it, 
 will destroy it. 
 
 It has become a serious question for the American people, 
 whether they have a Government or not, a question which this 
 war must decide. The essence of Government is that it com- 
 mand obedience. But with a Constitution granting limited 
 powers, which each department, each State, each section, each 
 party may construe as it pleases, which the Judiciary, for- 
 getting its nature, declares to be independent of its own pre- 
 vious decisions, so that all doubtful questions remain forever 
 open, how is it possible that the Government can have adequate 
 authority ? Out of these false doctrines grew the alleged right 
 of nullification and of secession ; the first which brought the 
 country to the verge of civil war, and the second to the present 
 contest, whose issues are veiled by the curtain of the future. 
 Because of these doctrines also, and of the incompetence of 
 those trusted with power, the Government, long before the 
 war, had ceased to inspire respect or confidence. Authority 
 had departed from it, and it fell so low, that a bold faction, in- 
 significant at first, dared to insult, defy, threaten, and finally 
 to attack it in armed rebellion. Are these causes still to con- 
 tinue their baneful action ? The time has come when the 
 question must be settled. Unless the Government can be 
 armed with sufficient power, legal as Avell as physical, to meet 
 all the exigencies of this crisis, neither the Constitution nor 
 the nation can be preserved. A nation without a government 
 is, indeed, as Mr. Hamilton said, an awful spectacle, even in 
 time of peace ; but how much more awful in time of war ! We 
 are walking over deep waters on ice that is cracking under 
 our feet.
 
 UNION. 99 
 
 CHAPTER 11. 
 
 UNION. 
 
 As already said in the preceding chapter, our Constitution 
 is partly new and partly old. When they set about the task 
 of constructing a Government, our fathers necessarily had in 
 their minds the Government under which they had lived. So 
 much of this as suited their circumstances they took, and could 
 not avoid taking ; and in whatever they were obliged to invent 
 they followed the existing model as closely as they could, both 
 from choice and necessity. In every question, therefore, that 
 arises under the Constitution, we should ask, first, What was 
 the English law, what the Colonial law ? and secondly, What 
 changes were imposed by new circumstances ? We shall thus, 
 in doubtful questions, ascertain what must have been the mean- 
 ing and intention of the founders, and perhaps also find in the 
 English law, for our guide, principles that have stood the test 
 of time. 
 
 It might be thought, from a superficial view of the subject, 
 that if any part of our Constitution was new, it is that which 
 provides for the Union, and establishes its complex relations 
 between the State and General Governments, creating at the 
 same time a Confederacy and a Nation. Yet for this also a 
 pattern existed in the " United Kingdom," and our ancestors 
 adopted the principles by which England, Scotland and Ire- 
 land became united. The same pattern existed also in the re- 
 lation of the Colonies to the Mother Country ; and when that 
 relation was severed, first the old Confederacy, and when that 
 failed the present Constitution, was contrived to take the place 
 of the Mother Country. ^ 
 
 The image, moreover, of the Union and the States, — that is 
 to say of central and local power, — was presented by the con-
 
 100 THE TRIAL OF THE CONSTITUTION. 
 
 struction of English society and its division into counties ma- 
 naging their own affairs, subject to the power of King or Par- 
 liament managing National affairs, — institutions derived from 
 Alfred and our Saxon ancestors, and brought by them, with 
 their blood and free spirit, from German forests. Lord Camp- 
 bell, in his Lives of the Chief Justices (Vol. I, p. 33), makes 
 some casual remarks, which illustrate the philosophy both of 
 the English Constitution and of ours in relation to this sub- 
 ject. Speaking of the office of Chief Justiciar as introduced 
 by William the Conqueror from Normandy, he says: "The 
 functions of such an officer would have ill-accorded with the 
 notions of our Anglo-Saxon ancestors, who had a great anti- 
 pathy to centralization, and prided themselves upon enjoying 
 the rights and advantages of self-government. The shires 
 being parcelled into hundreds and other subdivisions, each of 
 these had courts, in which suits both civil and criminal might 
 be commenced." And again, in a note on next page, "It is 
 curious to observe, that notwithstanding the sweeping change 
 of laws and institutions introduced at the Conquest, the cha- 
 racteristic difference between Frenchmen and Englishmen in 
 the management of local affairs still exists, after the lapse of 
 so many centuries ; and that whilst with us parish vestries, 
 town councils, and county sessions, are the organs of the petty 
 Confederated Republics into which England is parcelled out, 
 in France, whether the form of the Government be nominally 
 monarchical or republican, no one can alter the direction of a 
 road, build a bridge, or open a mine, without the authority of 
 the Ministre des Ponts et Chaussees. In Ireland, there being 
 much more Celtic than Anglo-Saxon blood, no self-reliance is 
 felt, and a disposition prevails to throw^ everything on the Go- 
 vernment." 
 
 Such are the influences of race ; and to these it is due that 
 Norman and Saxon have worked together in harmony to build 
 up a Constitution that suits them both ; for though the former 
 came from France to England, both are of the same Teutonic 
 stock which conquered the Celt in France as well as in Eng- 
 land, Scotland, and Ireland. Norman and Saxon assimilated 
 and became one people; but they have not assimilated with the
 
 UNION. 101 
 
 Celt, either in France, in Scotland, or in Ireland, and never 
 will. 
 
 Seeing, therefore, that this tendency to unity and diversity, 
 to central and local power, is a quality of race, manifested 
 from the earliest period in English history, it could not fail to 
 show itself in the Constitution of our Government, which else 
 would not have suited the people for whom it was intended. 
 Our ancestors, in obeying a natural impulse, had only to walk 
 in well-worn paths open before them. Let us inquire what 
 those paths were, and whether our fathers kept to them or de- 
 parted from them. 
 
 The British dominions consist, first, of the kingdom, con- 
 taining England, Wales, Scotland, Ireland, and some adjacent 
 islands, and, secondly, of the colonies and dependencies, such 
 as Canada, the West Indies, India, &c. The first are com- 
 bined into one Government, by a legislative union, each retain- 
 ing its local laws, customs and jurisdiction, each subject to 
 the general authority, and each possessing a share of influence 
 over that authority. The position of the colonies, or rather of 
 the English race in those colonies, differs from the former chiefly 
 in this, that their union with the parent country is not legisla- 
 tive but dependent. They have their local laws and local 
 government, but they are subject to the power of the English 
 Government, and yet have no voice in its councils, or control 
 over its action. In both, the ruling idea, a combination of 
 central with local power, is completely realized. 
 
 The countries which compose the United Kingdom, Eng- 
 land, Scotland and Ireland, were conquered by, the boM and 
 energetic Saxons, a branch of the great Scandinavian, Teu- 
 tonic, Indo-Germanic or Arian race, which is supposed, by 
 some writers, to have founded all the great empires that have 
 existed in the world, to have been the authors of civilization 
 and free government, and to be now the only portion of the 
 human family capable of enjoying or maintaining either.* 
 
 * Gobineau sur I'lneoralite des Races humain.
 
 102 THE TRIAL OF THE CONSTITUTION. 
 
 Without entering upon this question, it is enough for our 
 present purpose that the British Ishmds Avere conquered 
 by the Saxons, who drove the aboriginal inhabitants, the 
 Celts, into the barren and wild land, keeping the fertile 
 for themselves ; into the bogs of Ireland, the Highlands of 
 Scotland, the mountains of Wales, much as we have driven 
 the Indians into the wilderness, and ruled over them with 
 despotic power, as we govern the Indians, with small regard 
 for their interests or rights. 
 
 After a certain time, another branch of this same Germanic 
 race, the Normans, of a higher and more adventurous spii'it than 
 the Saxons, invaded and conquered England. But the con- 
 quest was of a very different character from that made by the 
 Saxon of the Celt, as was the nature of the government im- 
 posed by the Norman on the conquered country. The Nor- 
 man encountered the resistance of a people as brave and 
 intelligent as himself, who loved liberty and power as he did, 
 who had the same innate sense of justice, order and right, the 
 same force of mind and character. The two races were of 
 kindred blood, which soon flowed in the same veins, and their 
 instincts led them to adopt the same laws and customs. After 
 some generations, the laws, the customs, and the language of 
 the conquered race gained the ascendency, and, in time, all 
 traces of a different origin, or of the conquest, were obliter- 
 ated.* The trial by jury came from the Saxon and Magna 
 Charta was obtained by Norman barons from a Norman 
 king. 
 
 The natural difference and inequality of race is the guiding 
 clue to much of English history. It explains the combination 
 of local and Qentral power exhibited in its government, also 
 its system of representation, the freedom of its laws, its religi- 
 ous wars, its treatment of conquered countries, the condition 
 of its colonies, and the relations that have existed, and do 
 exist, between the component parts of the Empire. 
 
 This history establishes one general truth, pertinent to our 
 
 * These points are admirably developed in Thierry's History of the Norman 
 Conquest, and Scott's Ivanhoe, which suggested that work.
 
 UNION. 103 
 
 topic. Wherever the English go to found a Government, 
 that Government is a copy of the one they left at home. 
 They take with them all the rights and privileges of English- 
 men, and all English laws applicable to their condition. They 
 do not impart the benefit of those laws or grant those rights and 
 privileges to people of an inferior race, who are unable to under- 
 stand, appreciate or enjoy them. They took their laws and 
 rights to America, but did not give them to the Aborigines. They 
 took them to Hindostan, but did not give them to the Indians. 
 They took them to America and the West Indies, but did not 
 give them to the negroes. They took them to Scotland, but 
 did not give them to the Highlanders. They took them to 
 Ireland, but did not give them to the Celts. They kept 
 liberty and law, the trial by jury, and the Habeas Corpus, and 
 the right of suffrage, and, too often, justice and humanity, for 
 themselves, and gave to the conquered the position of a 
 separate and dependent people. 
 
 The ruling principle of the English Government, central 
 combined with local authority, springs from the love of 
 liberty and love of poAver inherent in the Saxon race. 
 Central authority controlling local interests would interfere 
 with self-government. But central authority is necessary in 
 a great and powerful nation. Unless this authority, how- 
 ever, be also subjected to the will of the people, it would be 
 dangerous to liberty. Central power, therefore, for national 
 objects, local power for local objects, — each acting in its 
 sphere, and both obedient to popular opinion, — is the ideal of 
 the English Government. It is the typical form towards 
 which the institutions of all people of English origin tend. 
 It is represented in the relations which England, Scotland 
 and Ireland bear to each other. It is represented in the re- 
 lation which all the English colonies have borne and still 
 bear to the parent country, and it is represented in the Ame- 
 rican Union.
 
 104 THE TRIAL OF THE CONSTITUTION. 
 
 Ireland was conquered in 1171, by Henry II, and par- 
 celled out among ten English families and their dependents, 
 the natives being either expelled from their lands, or treated 
 as a subject race. The English laws were introduced only for 
 the benefit of the English settlers.* Partly because of the 
 extent of the domains granted to them, and partly because of 
 troubles in England, which, for a long period, directed from 
 Ireland the attention of the Government, the English chiefs 
 became almost independent. The settlers, also, not being 
 replenished from the parent stock, rapidly degenerated, as 
 always happens from the contact of a superior with an infe- 
 rior race, where the latter is more numerous. They adopted 
 Irish manners, costume and language. The English autho- 
 rity and influence declined until the time of Henry VII., and 
 was restored by another conquest in the reign of Elizabeth, 
 by which great numbers of English emigrants were intro- 
 duced, to whom the lands of the conquered natives Avere 
 allotted. f By these means the Anglo-Irish became a large 
 portion of the population, and the island an important part 
 of the English dominions. 
 
 True to their nature, the people, that is to say, the " En- 
 glishry," demanded a control over their local interests, and 
 in the reign of James I obtained a Parliament, whose acts 
 were subject to revision by that of England, and Ireland 
 became a dependent kingdom. Thenceforth Ireland was in- 
 volved in the party contests of England, the native population 
 always siding with that party which promised them relief 
 from the English yoke. The bitterness of religious sectarian- 
 ism became connected with and inflamed the hostility of 
 race and the hatred inspired by conquest and oppression. In 
 the long contest between Protestant and Papist, the people 
 were, at the same time, persecuted as Catholics and oppressed 
 as Irishmen. Macaulay thus describes the relative positions 
 of the two classes : 
 
 * 3 Hallam's Constitutional History, 4C5 ; 5 Bancroft's History of United 
 States, 73. 
 
 t 1 Macaulay's England, GO.
 
 UNION. 105 
 
 '' The same line of demarcation which separated religion, 
 separated races ; and the Irish were of the conquered, the 
 subjugated and the degraded race. On the same soil dwelt 
 two populations, locally intermixed, morally and politically 
 sundered. The difference of religion was by no means the 
 only difference, and was perhaps not the chief difference that 
 existed betw^een them. They sprang from different stocks. 
 They spoke different languages. They had different national 
 characters, as strongly marked as any tAvo national characters 
 in Europe. They w^ere in widely different states of civiliza- 
 tion. There could, therefore, be little sympathy between 
 them ; and centuries of calamities and wrongs had generated a 
 strong antipathy. . . . The appellation of Irish w^as then given 
 exclusively to the Celts, and to those families who though not of 
 Celtic origin, had, in the course of ages, degenerated into 
 Celtic manners. These people, somewhat under a million, 
 had, with few exceptions, adhered to the Church of Rome. 
 Among them resided about two hundred thousand colonists, 
 proud of their Saxon blood, and of their Protestant faith. 
 The great preponderance of numbers on one side, was more 
 than compensated by a great superiority of intelligence, vigor 
 and organization on the other. The English settlers seem to 
 have been in knowledge, energy and perseverance, rather above 
 than below the average level of the population of the mother 
 country. The aboriginal peasantry, on the contrary, were in 
 almost a savage state. They never worked till they felt the 
 sting of hunger. They were content with accommodations in- 
 ferior to that which in happier countries was provided for 
 domestic cattle. . . . Even within a few miles of Dublin, 
 on a soil the richest and most verdant in the world, the 
 traveller saw with disgust the miserable burrows out of Avhich 
 squalid and half-naked barbarians stared wildly at him as he 
 passed."* 
 
 This was in 1680, and travellers ever since, up to the pre- 
 sent time, have described similar scenes ; for though the wealth 
 and civilization of Ireland have advanced with that of Eng- 
 
 * 2 Macaulaj's England, 118.
 
 106 THE TRIAL OF THE CONSTITUTION. 
 
 land, it lias really been the wcaltli and civilization of the 
 English in Ireland. Ignorance and poverty have still been 
 the characteristics and the fate of the Celt. He remains un- 
 altered through the centuries. 
 
 With such discordant elements within, acted upon by so 
 many disturbing causes without, the history of Ireland is a 
 tissue of rebellions and factions, of bloodshed, crime and 
 misery. The island has been the plague and curse of the 
 English Government at every period, always ready to resist 
 its authority and to join its enemies. These troubles arose 
 partly from the turbulent spirit of the Anglo-Irish, and partly 
 from the undying hatred of the subject race, which could be 
 neither tamed, civilized, appeased or amalgamated Avith the 
 superior. At length the remedy for these disorders, which 
 had successfully been employed in Scotland, was applied. In- 
 stead of a dependent kingdom with a separate Legislature, 
 Ireland, by the Union of 1801, became incorporated into Eng- 
 land, with a share of representation in the English Parliament. 
 At the same time, local authority over local interests was 
 secured to the Irish people. 
 
 It was the opinion and wants of the English race in Ire- 
 land, not of the Celtic, which demanded this arrangement, 
 and for whose benefit it was made. The Union was opposed 
 by tlie native population as adding new chains to their servi- 
 tude, and by not a few of the English also, as a merger of 
 the dignity and independence of their country into the superior 
 power and grandeur of England. It was advocated, because 
 it secured for Ireland " equality of interests, equality of 
 privileges, and unity of power," with tlie stronger nation. It 
 satisfied, at once, the love of centralization and of local govern- 
 ment. It -has been a benefit to both races, and if not to both 
 equally, that is to be attributed to the inherent diifcrences 
 which divide them. Ireland did not cease because of the 
 Union to be a source of trouble to England, both in peace and 
 in war, though far less so than before. Ireland is so close to 
 England, that it must be held either in subjection or in union. 
 The former was found to be dangerous, the latter is not en- 
 tirely safe. The Celtic population docs not love England or
 
 UNION. 107 
 
 the dominion of England over them. They are always ready 
 for revolt, always ready to welcome a French army on their 
 shores. A union, to be quite safe, must be one of feeling as 
 well as of power, not such 
 
 " As creates 
 Divided hearts, united states," 
 
 and such, to some extent, must ever be that which seeks to 
 combine two different races in one political community. 
 
 The English Government, however, has done much to soften 
 the animosities of race and inferiority, by more just and 
 humane maxims and measures than formerly prevailed, in its 
 treatment of Ireland. But far more has been done to promote 
 peace and order, by the immense emigration of the Celtic 
 race to our shores, their place having been rapidly supplied by 
 English settlers. The Irish have built our railroads, have dug 
 our canals, have helped to clear and plough and plant the wilder- 
 ness, have added immensely to our material wealth, and are , 
 now fighting bravely in our armies, but they have introduced 
 the element of a different race into our country, and whether 
 this relief to England be also a benefit to us, may well be 
 doubted. 
 
 The union between England and Ireland afforded no light to 
 our ancestors in making the Constitution, since it took place 
 in 1801. It is noticed here, partly to show the nature of 
 what may be called the English Confederacy, and partly, — as 
 will be explained further on, — because it affords an example 
 of the dangers and difficulties, alike of union and of disunion, 
 when two coiTntries lie side by side, and the people of one of 
 them are of a different and inferior race, existing in such 
 numbers as to give them powerful influence over the character, 
 the interests, the manners, the opinions and the destiny of 
 the superior. Neither separation, nor union, nor conquest, 
 nor subjugation, nor oppression, nor cruelty, nor almost ex- 
 termination, nor justice, nor kindness, — for all have been 
 tried, — have been able to make of Ireland anything but a pest 
 and nuisance to England, a constant source of difficulty and 
 danger, a moral, social and political curse. Gladly would the
 
 108 THE TRIAL OF THE CONSTITUTION, 
 
 English Government and people have got rid of it, if they 
 could, as Carlyle says, "send it off some three thousand 
 miles from their coast." One thing only has succeeded, and 
 that is colonization, — a plan, hy the Avay, Avhich Carlyle him- 
 self recommended, hut which has been executed, not by the 
 English Government, but by causes beyond its control. The 
 colonization Avas voluntary. The whole power of England 
 could not have effected it by force. 
 
 The last rising of the native race against the English was 
 stimulated by the French Revolution, which inspired them 
 with wild hopes of freedom. Again, the Celt expected succor 
 from France, again the Saxon triumphed by his knowledge 
 and his skill, backed by the power of England. Soon after 
 this the union followed, and then the enlightened spirit of the 
 age demanded for the Irish, — that is to say, for the Celt, — 
 the benefits of the free Constitution of England. This, too, 
 was at length accorded. But, as Macaulay says, " this late 
 triumph of reason and humanity was immediately followed by 
 disappointment ; it proved far less easy to eradicate evil passions 
 than to repeal evil laws, and long after every trace of reli- 
 gious and national animosity had been obliterated from the 
 statute-book, national and religious animosities continued to 
 rankle in the bosom of millions." He concludes with express- 
 ing a hope that "Avisdom, justice and time," may gradually 
 do in Ireland, Avhat they have done in Scotland, and that all 
 the races of the British Isles may be " indissolubly blended 
 into one people."* This hope can never be realized till the 
 numbers of the Celtic race become too few to excite alarm or 
 distrust, and then the inhabitants of the British Isles will be 
 regarded as one people, only because the element that refuses 
 to blend with them, will, like the Celts in Wales and in the 
 Highlands, be too small to be taken into the account. 
 
 The union with Scotland, Avhich Avas made in 1707, Avas the 
 model of the union Avith Ireland. There is little difference 
 
 * 4 Macaulay's England, 118.
 
 UNION. 109 
 
 between their terms. Their ruling principle is, a central 
 power, over which the people of both countries have control 
 by means of a legislature representing each, combined with 
 local powers for local affairs. 
 
 Before the union, both Ireland and Scotland were subjected 
 to the English Crown, but not to the English Parliament. 
 They had Parliaments of their own, and the authority of the 
 English monarch was exercised, not upon the people directly, 
 but indirectly through these local Parliaments. The relation 
 which each of these two States bore to England was widely 
 different. Ireland was a conquered country colonized by 
 England, the colonies holding a greatly superior number of 
 the native race in subjection, and therefore from the first, de- 
 pendent on England for aid and governed by its laws. Scot- 
 land, on the contrary, until the feudal union of the two Crowns 
 in 1603, under James I, was an independent nation. It had 
 resisted every attempt by England to conquer it, and its re- 
 sistance formed the most glorious part of its annals. The 
 reason was that its people were of the same Teutonic stock as 
 those of England. 
 
 "The population of Scotland, with the exception of the 
 Celtic tribes thinly scattered over the Hebrides and the moun- 
 tainous parts of the northern shires, was of the same blood 
 with the population of England, and spoke a tongue which did 
 not differ from the purest English, more than the dialects of 
 Somersetshire and Lancashire from each other. In Ireland 
 on the contrary, the population, with the exception of the 
 small English colony near the coast, was Celtic, and still kept 
 the Celtic speech and manners."* 
 
 The aboriginal people of Scotland, as of all the British Isles, 
 was Celtic. Two centuries before the Christian era, Scotland 
 was invaded and conquered by the Picts, a tribe of the Gothic 
 race, who occupied the more fertile lands of the south, driving 
 the Celts to the hills or highlands, where they were after- 
 wards reinforced by the emigration of their brethren from 
 
 * 1 Macaulay's England, 61.
 
 110 THE TRIAL OF THE CONSTITUTION. 
 
 Ireland, and in their turn conquered the Picts.* These Goths 
 were the Caledonians, who so long and bravely resisted the 
 Roman power, which others of their blood were destined after- 
 wards to overturn in Italy. They were described by Tacitus 
 as of German origin, indicated by their stature, ruddy hair 
 and fair complexion. f 
 
 Scotland was afterwards invaded by the Norwegians, who 
 continued their incursions till 1263, subdued both Pict and 
 Celt, and established the ascendency of the Germanic race. 
 These people maintained their independence against all the 
 efforts of England to subdue them. They, too, were of Teu- 
 tonic blood. Whilst the English colonists in Ireland, wholly 
 dependent on England, were governed by the English CroAvn, 
 whose previous assent was necessary to all laws passed by 
 their own Parliament, Scotland, on becoming part of the 
 British monarchy, retained her own Constitution and laws. 
 She gave a king instead of receiving one, and her tribunals 
 and Parliament Avere entirely distinct and independent of those 
 of England. J 
 
 This union, however, proved insufficient either for govern- 
 ment or peace. The authority of the Crown was great enough 
 to irritate, but not enough for real government. Differences 
 of religion, the animosities created by centuries of war, the 
 many causes of quarrel necessarily arising between bordering 
 nations and the revolutions that occurred in England, proved 
 sources of constant dissension. The parties that divided Eng- 
 Idnd divided Scotland also. She was conquered by Cromwell, 
 she was conquered again by William III, or rather the Jacobite 
 party Avas conquered, and at length to put an end to quarrels 
 that seemed otherwise interminable, and to secure a more per- 
 fect union than was afforded by having one branch only of the 
 government in common and all others separate, a compact was 
 made in 1707, by Avhich for general purposes all branches of 
 the Government should be the same for both nations ; the same 
 
 * 2 Buckle's History of Civilization in England, 129. 
 t Life of Agricola, | XI. 
 J 1 Maeaulay's England, 62.
 
 UNION. Ill 
 
 Executive and the same Legislature, in which latter, each 
 should be fairly represented. " Equality of interests, equality 
 of rights and unity of power," were thus secured, as in the 
 case of Ireland : local laws and customs were respected, but 
 with these central authority was established. As happened 
 in Ireland, the union was fiercely opposed by the majority of 
 the Scotch people. But time soon disclosed its benefits. It 
 has proved a great blessing to both countries, whose people, 
 being of kindred race, needed only the removal of barriers of 
 separation to make them one nation. 
 
 Now what were the terms, and what was the law of this 
 union, which must have been before the minds of our fathers 
 before they made the Constitution ; a union that was brought 
 about by the same necessity that produced ours, but which had 
 much more formidable obstacles to encounter. By the articles 
 agreed upon the two kingdoms are united into one, by the 
 name of Great Britain ; the succession to the crown is to be 
 the same as before settled, with regard to England ; the United 
 Kingdom shall be represented by one Parliament ; there shall 
 be a communication of all rights and privileges between the 
 subjects of both kingdoms ; the standards of coin, weights and 
 measures shall be reduced to those of England, throughout the 
 United Kingdoms ; the laws relating to trade, customs and the 
 excise, shall be the same in Scotland as in England. But all 
 other laws of Scotland shall remain in force, though alterable 
 by the Parliament of Great Britain. " Yet with this caution, 
 that laws relating to public policy are alterable at the discre- 
 tion of the Parliament ; laws relating to private rights are not 
 to be altered but for the evident advantage of the people of 
 Scotland."* 
 
 This was the Act of Union, and these its chief articles, and 
 they embody the principles upon which our Union was foimded. 
 A new nation with a new name is created by both. In each 
 the people are represented in the same Legislature. The 
 
 * 1 Blackstone's Comm., 96,
 
 112 THE TRIAL OF THE CONSTITUTION. 
 
 powers of Parliament were already well defined, and it was 
 only necessary to add, that the standard of coin, weights and 
 measnres should be uniform, and the laws relating to trade, 
 customs and excise the same in both countries, which is also 
 done in our Constitution. A common enjoyment of all rights 
 and privileges by the people of both nations in each, is pro- 
 vided by the English act, and for the people of the States, in 
 Article 4, sect. 2, of our Constitution. All the restraints 
 imposed on our States are implied by the supremacy of Parlia- 
 ment and the prerogatives of the Crown. The principle of 
 central, combined with local power is expressed in the last 
 clauses of the above extract, which declare that the laws of 
 Scotland shall remain in force, though they may be altered by 
 the Parliament representing both nations. No such power is 
 expressly given to Congress over the laws of the States, and 
 the independence of local authority in our system is also more 
 amply provided for by the separate governments of the States, 
 comprising executive, legislative and judicial authority, which 
 continued after the Union, but did not continue either in Scot- 
 land or Ireland after their union with England. The great 
 extent of our country, even in 1787, would have rendered it 
 inconvenient or impossible for the General Government to legis- 
 late for the different States, and so strong was the feeling of 
 local attachment and the love of local power, that the people 
 would not have consented to give up their separate State sove- 
 reignties which they had enjoyed as colonies. 
 
 The people, both of Ireland and Scotland, were also averse 
 to do this, and had the Union depended upon their votes, it 
 would never have been made. But their Governments were 
 not democracies. The people were not consulted. The Le- 
 gislature of each country was influenced partly by the obvious 
 expediency of the measure, and partly l)y the power and arts 
 of the English Government, by corruption and intimidation. 
 On each occasion it was necessary to deal only with one State. 
 In our case, the consent of nine States, to be given by a popu- 
 lar vote in each, was necessary to ratify the Constitution, and 
 to create, at the same time, a Union and a Government. The 
 consent of these nine States was obtained with great difficulty.
 
 UNION. 113 
 
 It was obtained under the pressure of obvious necessity, by 
 the influence of the great names that had become famous dur- 
 ing the war, and not by any just appreciation by the people 
 either of the merits of the Constitution or the advantages of 
 the Union.* Two States refused fov a long time to accede to 
 the plan, and did so at length only because they would have 
 been too weak to stand alone. 
 
 The spirit of State sovereignty was further manifested by 
 the Tenth Article of the Amendments to the Constitution, 
 which declares that " the powers not delegated to the United 
 States by the Constitution, 7ior 2)rohibited hy it to the States, 
 are reserved to the States respectively, or to the people." All 
 this is im^Dlied by the terms already quoted of the Act of Union 
 between England and Scotland ; but that act, whilst defining 
 the duty, asserts the supremacy of Parliament. 
 
 We see, therefore, that the British Union is more complete 
 than ours, and the three IsTations have been made more effectu- 
 ally one than the States under our Constitution ; because in 
 the former the central power is stronger and the local power 
 weaker. What, then, is the English law of Union ? It is 
 thus stated by Blackstone : " The two Kingdoms are now so 
 inseparably united that nothing can ever disunite them again, 
 except the mutual consent of both or the successful resistance 
 of either, upon apprehending an infringement of those points 
 which, when they were separate and independent nations, it 
 was mutually stipulated should be fundamental and essential 
 conditions of the Union.' '^^ 
 
 Two modes of dissolving the English Union are here pointed 
 out, — one legal, the other revolutionary. It may be destroyed 
 by mutual consent of the parties, — that is to say, by an act 
 of Pai^iament in which both are represented, — for neither of 
 them has any other mode of expressing its assent, — or by suc- 
 cessfid forcible resistance. The latter method is the exercise 
 of a right which cannot be provided for by any Constitution, 
 for it is paramount to all law, — the right of self-defence against 
 
 * 2 Marshall's Washington, 127. 
 t 1 Blackstone's Comm., 98.
 
 114 THE TRIAL OF THE CONSTITUTION. 
 
 manifest injustice and oppression. It is a riglit no law can 
 establish -without declaring, at the same time, that its own au- 
 thority maj be set at defiance, — which would be suicidal and 
 inconsistent with the idea of law or government. It is a right, 
 moreover, which cannot be settled by any Constitution or sta- 
 tute, because the circumstances under which it may arise can- 
 not, from their nature, be defined. 
 
 It is clear that Blackstone did not intend to speak of resist- 
 ance as a legal right, but only as a way in which the Union 
 might be broken in fact, for he speaks of successful resist- 
 ance, — that is to say, resistance opposed by the Government. 
 Resistance maybe morally justifiable, though defeatefl; and 
 the legal right to dissolve the Union 'because its terms had 
 been violated cannot be contingent on the chances of a physi- 
 cal contest. So, also, if the Government may oppose resist- 
 ance, it may subdue it, and thus preserve the Union against 
 the wishes of one party; though, if resistance or rebellion 
 cannot be subdued, it becomes revolution, — in which case the 
 Union would be severed in fact, and, Avhen the separated part 
 was recognized by the Government, would be severed in law. 
 
 The right and the duty of Government, and the possibility 
 of disunion as a practical result of an abuse of power, are 
 stated in a note on the same page, explanatory of the text 
 quoted above. " It may justly be doubted whether such an 
 infringement" (of the fundamental conditions of the Union), 
 "though a manifest breach of good faith, unless done on the 
 most pressing necessity^ would of itself dissolve the Union ; for 
 the hare idea of a State, ivithout a poiver someivhere vested to 
 alter every part of its laws, is the height of political absurdity. 
 The truth seems to be, that in such an incorporate Union 
 (which is Avell distinguished by a learned prelate from a Fede- 
 rate alliance, Avhere such an infringement Avould certainly re- 
 scind the compact), the tAvo contracting States are totally 
 annihilated, without any power of a revival ; and a third arises 
 from their conjunction, in which all the rights of sovereignty, 
 and particularly that of legislation, must of necessity reside. 
 But the wanton or imprudent exertion of this riglit would pro- 
 bably raise a very alarming ferment in the minds of individuals.
 
 UNION. 115 
 
 and therefore it is hinted above, that such an attempt might 
 endanger, though bj no means destroy the Union." 
 
 The English law then is clear enough. Bj the several acts 
 uniting England with Scotland and Ireland, the separate ex- 
 istence of each became merged into that of a new nation, called 
 thenceforward " The Kingdom of Great Britain and Ireland," 
 and governed by a Legislature representing the whole, which 
 Legislature is supreme. It is still the English Parliament, 
 with its attribute of omnipotence. It has power as before over 
 the whole nation, and all its parts, to maintain the Union, or 
 to dissolve it. A separation must be the work of Parliament, 
 not of Ireland or of Scotland. It may be granted to the 
 wishes of either, or it may be refused, according to the plea- 
 sure of Parliament. So much Blackstone says, and so much 
 may be inferred, from the fact of the legislative union of the 
 three kingdoms, and the accepted doctrine that Parliament is 
 omnipotent. 
 
 But another inference from both may also be drawn, which 
 is, that Parliament has legal power to dismember the nation by 
 withdrawing from any portion of it the authority and protec- 
 tion of the Government, and excluding such portion from its 
 rights and privileges under the Union. An act of this sort 
 might be oppressive and a violation of good faith, or necessary 
 and just, according to circumstances. It might be the result 
 of an unsuccessful war, in which the cession of territory was 
 exacted by a victorious enemy, as the only condition of peace, 
 or it might be demanded by a majority of the nation as essen- 
 tial to their interests, their safety or their tranquillity. It is 
 a supposable case, that either Ireland or Scotland might be- 
 come disaffected to the Government, and that Parliament 
 would prefer to get rid of either, rather than hold it in subjec- 
 tion by force. It is supposable that the Celtic race might be- 
 come dominant in Ireland, that by their turbulence, their 
 ignorance and their pauperism, the English should be driven 
 out of the island or be reduced to the level of the Celt, and 
 that the English people would refuse to live on equal terms, 
 or any terms, with a country which could not participate in 
 their civilization or liberty, or share their destiny. In these
 
 116 THE TRIAL OF THE CONSTITUTION". 
 
 and other cases that may be imagined and may happen, there 
 can be no doubt of the legal power of Parliament to sever the 
 luiion, for Parliament has sovereign power over the nation. 
 
 Such, then, is the English law of the Union of the British 
 Empire. Parliament has sovereign power, either to maintain 
 it or to break it, and over that question no one of the compo- 
 nent parts has any poiver ivJiatever. This, indeed, is only 
 another way of saying that Great Britain is a nation and has 
 a Government ; for every Government must have supreme con- 
 trol over all its domain. If it be asked what security the 
 people of Ireland and Scotland have against oppression, 
 against the violation of the terms of the original compact, or 
 against the arbitrary sundering of the Union, the ansAver is, 
 that they have all the security which the case admits. They 
 have the security ttfforded by the votes and influence of Scotch 
 and Irish members of Parliament, by the benefits which the 
 Union has conferred on the Avhole nation, by an enlightened 
 and vigilant public opinion, by the control exercised by that 
 opinion over Parliament, through the elections and by the 
 character of the Government itself, its intelligence, honor, 
 public spirit and sense of duty. No constitutional provisions 
 can afibrd safeguards equal to these. Should these fail, any 
 other must prove ineffectual. They have not failed during 
 an experience of a hundred and fifty years in the case of 
 Scotland, and of sixty years in the case of Ireland. By the 
 contract of union, the contracting parties ceased to exist. That 
 they should do so was the very object of the contract. A new 
 nation and a ncAV Government were created, a Government 
 necessarily without a legal superior, and invested with all the 
 powers of the three, before independent. This Government 
 has no internal checks, nor can have. All control over it 
 must be external, such as above described, and should these 
 fail, the ultimate remedy for injustice remains, — the natural 
 right of resistance, an extreme remedy for extreme ills, to be 
 resorted to only when all redress by other means is hopeless. 
 
 Such is the English law of Union. It arose out of ne- 
 cessity imposed by circumstances. Three nations, close 
 neighbors, inhabited by different races, were engaged in con-
 
 UNION. 117 
 
 stant and inevitable wars. By conquest and by the accident 
 of hereditary succession to the Crown, the three became par- 
 tially united. Partial separation, nevertheless, was sufficient 
 to maintain the old discord. Fierce and cruel wars, checking 
 the progress of civilization in each country, and devastating 
 with fire and sword the weaker, continued through many cen- 
 turies. At length, some wise men thought of uniting the 
 three nations under one Government, as they were already 
 united under one Crown. They were separated from the rest 
 of the world by a sea, then not so easily passed as it is now. 
 If they could be at peace with each other and form one people, 
 their combined power might secure them from foreign attacks, 
 whilst tranquil and safe at home, their genius and industry 
 would insure rapid progress in wealth and refinement. 
 
 For the sake of these advantages, the three nations ac^reed 
 to annihilate their separate existence and become one nation, 
 living under one Government. It is clear that their new con- 
 dition made it necessary that a power be lodged somewhere 
 to maintain the Union, should it prove beneficial, and to dis- 
 solve it, if found productive of more evil than good. Only in 
 the Government that represented the whole could this power 
 be placed. To grant it to each of the parts would have 
 given to a part power over the whole, would have continued 
 the separate existence of each, and would have created not a 
 Union, but an alliance, — the very thing the Act of Union 
 meant to avoid. 
 
 We have shown that our Constitution is very similar to the 
 Act of Union between England, Scotland and Ireland, so 
 far as it relates to the great principles of central and local 
 power. But Scotland and Ireland are parts only of the 
 British Confederacy, of which our ancestors were members. 
 What was the Laiv of Union between Great Britain and her 
 Colonies ? Whatever it was, it must have served as a guide 
 or a warning, or as both, to those who made our Constitution, 
 and may, perhaps, enable us to find out their meaning, or what
 
 118 THE TRIAL OF THE CONSTITUTION. 
 
 is still more important, to establish, on safe and just founda- 
 tions, the law of to-day. 
 
 As already stated, the idea of union Avas no novelty to the 
 American people before the War of Independence. The Colo- 
 nists were already united, not only by similarity of race, 
 language, laws, literature and history, but they were united 
 under one general, central government. They were fellow- 
 subjects of the British Crown, and entitled to all the rights 
 and privileges of Englishmen, — among them, to the privilege 
 of self-government and the right of granting or refusing their 
 assent, by their representatives, to laws which taxed their 
 property or controlled their personal or local interests. For 
 the purposes of local government, each colony had its own 
 Legislature and its own Courts. They all formed a part of 
 the British Empire, were entitled to its protection and go- 
 verned by its laws, in things that related to the government 
 of all. 
 
 In these respects the position of the Colonies was similar to 
 that of Ireland, which was a distinct dominion and had its 
 own Parliament, so that no acts of the English Parliament 
 extended into it, unless it was specially named. Its right of 
 self-government was recognized as early as the reign of Henry 
 VI and Richard III, when it was declared that " a tax granted 
 by the Parliament of England shall not bind those of Ireland, 
 because they are not summoned to our Pm-liament." And 
 again : " Ireland hath a Parliament of its own, and maketh 
 and altereth laws ; and our statutes do not bind them, because 
 they do not send knights to our Parliament."* 
 
 The violation of these ancient privileges produced the 
 American Revolution. With what affection the Colonies clung 
 to the mother country, how much they endured, how long 
 they remonstrated and entreated, with what reluctance the 
 idea of resistance or independence was admitted, are well 
 known. Nothing short of gross injustice and persistent out- 
 rage to the ruling sentiment of their race, the love of self- 
 government, could have weakened or destroyed their loyalty. 
 
 * 1 Blackstone's Comra., 101.
 
 UNION. 119 
 
 ''In America," said Samuel Elliot, of Boston, in 1767, "the 
 people glory in the name and only desire to enjoy the liberties 
 of Englishmen. There is not the least foundation for the 
 suspicion that they aim at independence. If we have no 
 forces or new stamp act, I would almost answer for them. 
 Our warmest patriots speak of our connection with Great 
 Britain as a felicity ; and to have it broken, as one of the 
 greatest misfortunes that could befall us."* And again, in 
 1774, after the tea had been thrown into Boston harbor, and 
 the mutterings of war were heard in the approaching future, 
 when Franklin was departing to make a last effort at recon- 
 ciliation, his instructions contained these words : 
 
 " The old good-will and affection of the people for the 
 parent country are not totally lost ; if she returns to her 
 former moderation and good humor, their affection will revive. 
 They wish for nothing more than a permanent union Avith her 
 on the condition of equal liberty. This is all they have been 
 contending for, and nothing short of this will or ought to 
 satisfy them."f 
 
 But England would not be entreated. Her Government 
 determined to assert the supremacy of Parliament, and could 
 think of no better way to do this than by measures which 
 violated well-established constitutional principles and rights 
 long enjoyed. It was the oppressive use of power that the 
 Americans resisted. The theoretical "omnipotence" of Par- 
 liament could not be denied. It Avas not really denied in 
 America ; it was never doubted by the friends of America in 
 England. No one could pretend that an act of Parliament 
 was legally void, though unconstitutional, — that is to say, a 
 departure from established custom, and though its tyrannical 
 character might justify resistance. 
 
 The Americans contended for an idea, the right to tax them- 
 selves, the right of local legislation, a right which belonged to 
 them as Englishmen. The}^ had borne heavy burdens on their 
 industry, vexatious fetters on their enterprise and commerce, 
 
 * 6 Bancroft's History, Y3. 
 t 6 Bancroft's History, 509.
 
 120 THE TRIAL OF THE CONSTITUTION. 
 
 in the shape of navigation acts, duties and restrictions imposed 
 for the benefit of England, Avithout murmuring. But to lay a 
 direct tax upon them, like that of the stamp act, without the 
 consent of their own representatives, violated their rights and 
 their instinctive love of self-government. Thej resisted it. 
 Had they been French colonists, they would not have resisted. 
 The French colonies are governed in all their interests by the 
 central power at Paris, Avithout a murmur of discontent. " If 
 taxes are laid upon us," said Boston in 1764, "without our 
 having a legal representation loliere they are laid, are Ave not 
 reduced from the character of free subjects, to the miserable 
 condition of tributary slaves ? This annihilates our charter 
 right to govern and tax ourselves. We claim British rights, 
 not by charter only; Ave Avere born to them."* To the same 
 efi'ect is the protest of the Assembly of Massachusetts. " Can 
 it be possible that duties and taxes shall be assessed Avithout 
 the voice or consent of an American Parliament ? If A\-e are 
 not represented Ave are slaves. Ireland Avas a conquered coun- 
 try, yet no duties AA^ere levied in Ireland by the British Parlia- 
 ment. "f Patrick Henry maintained that "the inhabitants of 
 Virginia inherited from the first settlers of that dominion 
 equal franchises AA'ith the people of Great Britain ; that taxa- 
 tion by their representatives was the distinguishing character- 
 istic of British freedom and the Constitution." "We ha\'e 
 the rights of Englishmen," was the common voice, "and as 
 such Ave are to be ruled by laAvs of our OAvn making, and tried 
 by men of our OAvn condition." 
 
 By the joint influence of the rising discontent of the colo- 
 nists, and the eloquent arguments of their friends and advo- 
 cates in Parliament, the Stamp Act Avas repealed, though the 
 purpose of raising revenue in America by internal taxation 
 Avas not relinquished. This had been done before by external 
 regulations of commerce and restrictions upon trade and manu- 
 fiictures, to Avhich the colonists had long submitted. They, 
 hoAvever, made bold by success, by consciousness of groAv- 
 
 * Bancroft's History of United States, 197. 
 t Ibid., 199-286.
 
 UNION, 121 
 
 ing strength, by union, and their views enlarged by the dis- 
 cussions which had been elicited, discovered that in principle 
 there was no difference between being burdened by external 
 duties, levied without their consent in England, and by internal 
 taxes collected in America, though the former had been long 
 borne without complaint. When asked by the House of Com- 
 mons, in 1766, to point out the difference between them, Frank- 
 lin could only mention a practical diflference : " The people 
 may refuse commodities of which the duty makes a part of the 
 price, but an internal tax is forced from them without their 
 consent." 
 
 When asked whether Parliament's right of external taxation 
 might not also be objected to, he replied that it had never been 
 hitherto. " Many arguments have been made here, lately, to 
 show that there is no difference, and that if you have no right 
 to tax them internally you have none to tax them externally, 
 or make any other latv to hind them. At present they do not 
 reason so, but in time they may be convinced by these argu- 
 ments."* 
 
 They were convinced by them and by the oppressive mea- 
 sures of the English Government, and the result at length was 
 a Declaration of Independence and war. It is to be observed 
 that war and consequent separation might have been avoided 
 by the expedient which had before made peace between Eng- 
 land and Scotland, and afterwards between England and Ire- 
 land, — a Legislative Union. Had the Colonies been allowed 
 to send representatives to the English Parliament, the prin- 
 ciples so zealously maintained by America would have been 
 satisfied. This plan was frequently suggested and discussed 
 during the long controversy, but was not pressed by the colo- 
 nists on the ground that it was impracticable, and was rejected 
 by Parliament for the alleged and absurd reason that they were 
 already virtually represented. An able and very influential 
 pamphlet of the day (1765) thus stated the point : "It is not 
 the tax, it is the unconstitutional manner of imposing it, that 
 is the great object of uneasiness to the Colonies. The Minister 
 
 * 5 Bancroft's History of United States, 432.
 
 122 THE TRIAL OF THE CONSTITUTION. 
 
 admitted in Parliament that they had in the fullest sense the 
 right to be taxed only by their own consent, given by their 
 representatives, and grounds his pretence of the right to tax 
 them entirely upon this, — that they Avcre virtually represented 
 in Parliament."* 
 
 The claim, as a mere naked right, had a better foundation. 
 It was an incident of the right of the British Government to 
 retain the Colonies as part and parcel of the British Empire. 
 The expense of governing and of protecting them Avas paid by 
 England. The external taxes had proved inadequate for the 
 purpose. Since the time of William the Third it had been a 
 maxim that America, like Ireland, should bear in whole or in 
 part the cost of its military establishment. But how^ to compel 
 America to contribute to this expense, was the question. The 
 practice long had been to send Executive orders or requisi- 
 tions ; but these were liable to be debated in twenty Colonial 
 Legislatures, might therefore be delayed or refused, and often 
 were refused. A necessity was felt for some central poiver, or 
 for Union. The King had no power to demand revenue from 
 America and raise it by coercive measures. Parliament alone 
 could do this, and resort was had to the power of Parliament. 
 " When New York failed to make appropriations for the civil 
 service, a bill was prepared, to be laid before Parliament, giving 
 the usual revenue. ... It was settled then that there must be 
 a military establishment in America of twenty regiments ; that 
 after the first year its expenses must be defrayed by America; 
 that the American Colonies themselves Avould never agree to 
 vote such a revenue, and that Parliament must do it."f 
 
 For this purpose the poAver of Parliament must of necessity 
 be supreme, as it must for any other act essential to maintain- 
 ing the relation of the Colonies to the mother country, for 
 otherwise they Avould be independent. A case might happen 
 in Avhich the exercise of such power Avould be justifiable, and 
 it is to meet such cases that the power exists. An act of Par- 
 liament taxino; the Colonies against their consent Avas uncon- 
 
 * 5 Bancroft's History of United States, 281. 
 t 5 Bancroft's History of United States, 154.
 
 UNION. 123 
 
 stitutional, but it was not void. It might violate precedent, 
 laws and established rights, and yet do this wisely, reasonably, 
 and of necessity. Therefore no act of Parliament can be void, 
 for there must be supreme power to answer a supreme need. 
 
 But an act of Parliament may be unjust and oppressive, and 
 may thus call forth the natural right of resistance, which, 
 because it is superior to all laws and constitutions, cannot be 
 provided for in any. Of this nature was the attempt to tax 
 America. It violated ancient rights, and violated them un- 
 necessarily. It disregarded the ruling sentiment of a loyal 
 people, and exacted slavish submission to arbitrary Avill, instead 
 of free obedience to equal laws. This might suit Frenchmen 
 in French colonies, and thus were French colonies governed, 
 but it did not suit the genius of the Saxon race, who cannot 
 live under any laws which they do not themselves make. The 
 case presented all the conditions necessary to justify resist- 
 ance, and to call into being the " right of revolution." The 
 grievance was real. The material interests involved, whether 
 great or small, formed no part of it. It Avas a burden on the 
 soul ; it was an attack on the moral life of the people, of which 
 liberty was the essential element. There was no hope of 
 redress by legal means, but there was hope of redress by resist- 
 ance, as the event proved. All legal means, arguments, 
 petition, remonstrance, humble entreaty, through long j^ears, 
 were tried in vain. Slowly and sorrowfully at length, but 
 steadfastly and solemnly, our ancestors took the position 
 which, through other long years of heroic war, they success- 
 fully maintained. They determined to become a nation, a 
 new nation of Englishmen, and to found a Government which 
 should embody and preserve forever that noble liberty which 
 they had inherited from a glorious past. 
 
 The genius of Burke, the brightest star in the constellation 
 of English statesmen of the day and the only one who could 
 think philosophically, and therefore prophetically, grasped 
 the case in all its bearings, its causes, and its consequences. 
 In his speech on American taxation, delivered in the House 
 of Commons April 19, 1774, with eloquence which glows even 
 through the imperfect report of it, he vindicated the rights,
 
 124 THE TRIAL OF THE CONSTITUTION. 
 
 depicted the Avrongs, and foretold the future of America, 
 ■whilst he, at the same time, expounded the law ^^•hich rules the 
 subject, "vvith clearness and unanswerable trutli. " Again, 
 and again," he says, ''revert to your old principles, — seek 
 peace and insure it. Leave America if she has taxable matter 
 in her to tax herself. I am not here going into the distinc- 
 tions of rights or attempting to mark their boundaries. I do 
 not enter into these metaphysical distinctions. I hate the 
 very sound of them. Leave the Americans as they anciently 
 stood, and these distinctions, born of an unhappy contest, Avill 
 die along with it. They and we, and their and our ancestors, 
 have been happy under that system. Be content to bind the 
 Americans by laws of trade ; you have always done it. 
 Let this be your reason for binding thei;- trade. Do not 
 burden them by taxes ; you were not used to do so from the 
 beginning. Let this be your reason for not taxing. These 
 are the arguments of States and Kingdoms. Leave the rest 
 to the schools ; for there only they may be discussed with 
 safety. But if intemperately, unwisely, fatally, you sophisti- 
 cate and poison the very source of Government by urging 
 subtle deductions and consequences, odious to those you 
 govern, from i\\Q unlimited and illimitahh nature of supreme 
 sovereignty, you will teach them, by those means, to call that 
 sovereignty itself in question. If that sovereignty and their 
 freedom cannot he reconciled, which will they take ? They tvill 
 cast your sovereignty in your face. Nobody will be argued 
 into slavery. Sir, let the gentlemen on the other side tell me 
 what one character of liberty the Americans have, and Avhat 
 one brand of slavery they are free from, if they are bound in 
 their property and industry, by all the restraints you can 
 imagine on commerce, and, at the same time, made pack- 
 horses for every tax you choose to impose, without the least 
 share in granting them. When they bear the burden of 
 unlimited monopoly, will you bring them to bear the burdens 
 of unlimited revenue too ? The Englishman in America will 
 feel that this is slavery, — that it is legal slavery, Avill be no 
 compensation to his feelings or his understanding." 
 
 In the same speech there is the follo^Ying striking descrip-
 
 UNION. 125 
 
 tion of the British Empire and of its relations to the central 
 Government, which is well worth attention, because it states 
 not the law only, but the reasons of the law. When these 
 are known, it is easy to determine whether they be applicable 
 to new circumstances. "I look," said Mr. Burke, " on the 
 imperial rights of Great Britain, and the privileges which the 
 Colonies ought to enjoy under those rights, to be the most 
 reconcilable things in the world. The Parliament of Great 
 Britain sits at the head of her extensive Empire in two capa- 
 cities: one, as the local Legislature of this island, providing 
 for all things at home, and by no other instrument than the 
 Executive power. The other, — and, I think, her nobler 
 capacity, — is what I call her imperial character, in which, 
 as from the Throne of Heaven, she superintends all the se- 
 veral inferior legislatures, and guides and controls all without 
 annihilating any. As all these provincial legislatures are 
 only co-ordinate to each other, they ought all to be subordi- 
 nate to her, else they can neither preserve mutual peace, nor 
 hope for mutual justice, nor effectually afford mutual assis- 
 tance. It is necessary to coerce the negligent, to restrain the 
 violent, and to aid the iveaJe and deficient by the overivhelming 
 plenitude of her power. She is never to intrude into the 
 place of others v/hilst they are equal to the common ends of 
 their institutions. But, in order to enable Parliament to 
 answer these ends of provident and beneficent superinten- 
 dence, her poivers must be boundless. The gentlemen who 
 think the powers of Parliament limited, may please to talk of 
 requisitions. But suppose the requisitions are not obeyed. 
 What ! shall there be no reserved power in the Empire to sup- 
 ply a deficiency that may weaken, divide and dissipate the 
 whole ? We are engaged in war. The Secretary of State 
 calls on the Colonies to contribute. Some would do it, I think 
 most would furnish cheerfully whatever is demanded. One or 
 two, suppose, hang back and easing themselves, let the stress 
 of the draft lie on the others. Surely it is proper that some 
 authority might legally say, ' Tax yourselves for the common 
 supply, or Parliament will do it for you.' .... But then, 
 this ought to be no ordinary power, nor ever used in the first
 
 126 THE TRIAL OF THE CONSTITUTION. 
 
 instance. This is -what I meant, when I have said that I con- 
 sider the power of taxing in Parliament, as an instrument of 
 unipire and not as a means of supply." 
 
 It is obvious, from this reasoning, that if, — as above shown, 
 — by the law of the union between England, Scotland and 
 Ireland, Parliament has supreme power over that union, to 
 maintain or dissolve it, the power of the parent country 
 over the union of its colonies cannot be questioned. They 
 form a part of the British Empire, and the British^Governraent 
 must, of necessity, have absolute power over them to enforce 
 their obedience, to grant them independence, or to dismiss 
 them to shift for themselves, as justice and expediency may 
 demand. Should Canada, for example, rebel, England Avould 
 unquestionably have a right to suppress the attempt, by mili- 
 tary power. Should Canada formally pray to be allowed to 
 form a separate nation, the privilege could be legally granted, 
 and, probably, would be, if for her benefit, — for she is no 
 longer valuable as a colony, — has become, indeed, rather a 
 burden than a benefit, in peace or in war. But Canada 
 might become worse than useless, — a troublesome and danger- 
 ous appendage to the Empire. She might be factious, disaf- 
 fected, insubordinate. A portion of her people might desire 
 annexation to our States, and thus become a source of expen- 
 sive war to England. Should these things happen, no one 
 could doubt the legal power of England to get rid of Canada, 
 with or without her consent. 
 
 Such is the British Union, whose morning drum-beat, as 
 Mr. Webster said, announcing the sunrise, encircles the earth 
 every day. Such is the Government whose benign sway has 
 carried English liberty, law and literature over the fairest por- 
 tions of the world. Such was the Government under which 
 our fathers lived and which they revered and loved. Why, 
 then, did they withdraw from it ? Its principles supplied 
 local self-government, one necessity of their Saxon nature. 
 They supplied a central power for national strength and pro- 
 tection. Where was the defect? These principles did not
 
 UNION. 127 
 
 give also a share of control over that central power. Whilst 
 the power was exercised with moderation, the defect was un- 
 noticed, or was borne from habit, from loyal attachment and 
 because of the benefits conferred by the Union. When the 
 power was abused, it was resisted and cast off. The remedy 
 for this defect was a legislative union, which had been success- 
 ful with Scotland, which was afterwards successful with Ire- 
 land, and for want of which America was lost. The grievance 
 complained of was not the burden of taxes, for the colonists 
 had borne heavier burdens, but the principle of taxation 
 without representation. The moment the operation of this 
 principle was perceived by the people, it caused a passionate 
 burst of opposition throughout the Provinces. 
 
 It never was perceived and felt until the Stamp Act was 
 passed, Avhich was the first attempt to impose direct taxes. 
 Indirect taxes were ap2)arently voluntary, for they were paid 
 in the price of the taxed commodities. The seller, though 
 in reality a tax collector, visited no man's house to demand 
 tribute. To forbear to purchase was to avoid the tax. The 
 commercial regulations and the navigation acts, moreover, as 
 Mr. Burke said, in another part of the speech above quoted, 
 were sanctioned by custom. They began with the infancy 
 and had grown with the growth of the Colonies, which pros- 
 pered under them, onerous as they were. But direct taxes 
 were not only a novelty, but a novelty which announced in a 
 way not to be misunderstood, a departure from principle, and 
 a violation of well-established constitutional right ; the right 
 of being governed, not by a distant, independent power, but 
 by a power representing the people. 
 
 Had the British Government abstained from this abuse of 
 power, separation would have been avoided, as it has been in 
 the case of Canada. Had England granted to the colonists, 
 as she did to Scotland and Ireland, the privilege of sending 
 representatives to Parliament, separation would have been 
 avoided, at least for a time. But for many reasons, not neces- 
 sary now to discuss, this was difficult, if not impracticable, and 
 was acknowledged to be so by the Americans themselves. Yet 
 such representation was the one thing necessary to satisfy the
 
 128 THE TRIAL OF THE CONSTITUTION. 
 
 moral -wants of the people, and to secure that freedom which 
 was their hirthright, under the ancient laws of their father- 
 land. Of the want of this thej complained, and of that only, 
 and for the sake of this they fought and conquered. 
 
 The picture, therefore, given hy Mr. Burke, of the British 
 Union, is worthy attentive study. It is a picture, drawn by 
 the hand of a master, of the Government which our ancestors 
 regarded with profound and loyal aifection. In their eyes it 
 had but one defect, — it did not provide for their representation 
 in the central power. Is it not fair to suppose, therefore, that 
 when tliey themselves came to construct a central power, with 
 subordinate dependencies, this old, long-tried, renowned and 
 venerated Government would be taken as their model, except 
 in the part they had found defective, the only part to whicli 
 they had ever objected ? 
 
 It was natural that they should do this, and therefore they 
 7nust have done it, and the more we examine this description 
 given by Mr. Burke of the British Union, the more does it look 
 like the American Union, if we add the principle of central 
 representation, omitted in the former. If we look also to the 
 history of both countries after the separation, we shall find 
 that the very same causes which induced England to grant 
 representation to Ireland, the impossibility of governing go- 
 vernments, that is to say, by means of requisitions directed to 
 independent legislatures, instead of by direct action on the 
 people, led our ancestors to create both a confederacy and a 
 nation. 
 
 I have thus endeavored to show what is the laAv of the 
 great British Union, which is both a confederacy and a nation, 
 Avhich law was written in the minds and hearts of our fore- 
 fathers, when they undertook the difficult and delicate task of 
 forming the American Union. We have seen that by tliis law 
 both central and local governments are created, and that the 
 central power is vested with supreme authority over the fact 
 of Union, to preserve it or destroy it, as circumstances require. 
 Let us now ask, what, with this model before them, our ances-
 
 UNION. 129 
 
 tors actually did in this respect, what was the law they made 
 and also what is the natural organic law of our Union, which law 
 we ourselves must make, if we have it not already, or perish. 
 
 liTot only was the idea of Union familiar to the minds of 
 our ancestors, because they belonged to the confederacy of the 
 British Empire, but because from the earliest period combined 
 action by means of a Congress of delegates from the Provinces 
 was habitual. This was necessary for defence against the 
 French and Indians, whose attacks involved all in a common 
 danger, and led to the formation of tlie " United Colonies of 
 New England" in 1643, and to the General Congress of the 
 Colonies at New York in 1690. When the spirit of resistance 
 was roused by the Stamp Act of 1765, Union was an expedient 
 already tried, though then for the first time without the con- 
 sent of the home Government, but not in opposition to its 
 authority. 
 
 Nevertheless, it suggested to thoughtful minds the vision of 
 a future nation. The w'rath of the colonists waxed stronger 
 with the persistence of the British Government in its plan of 
 taxation; and as the prospect of a rupture gradually assumed 
 a more and more definite shape, the absolute necessity for 
 Union became apparent. In 1772 the celebrated "Committee 
 of Correspondence" was organized by Samuel Adams, of Bos- 
 ton.* They sent circular letters to the Colonies, urging the 
 importance of combined action for the defence of common 
 liberty and rights. Province called to province. The flames 
 of passion, kindled by the sense of wrong, were fed by confi- 
 dence in mutual aid. This committee first suggested the idea 
 of Independence and an American nation. An irresistible im- 
 pulse swayed the people. They felt more than they said, and 
 when they looked at the magnificent country which was theirs^ 
 were stirred by thoughts of what might be, but which habits of 
 obedience and loyalty repressed for a time. They were Eng- 
 lishmen, and were moved alike by the love of liberty and the 
 
 * 6 Bancroft's History of United States, 429. 
 9
 
 130 THE TRIAL OF THE CONSTITUTION. 
 
 love of power. Liberty was theirs by right, and power awaited 
 only the grasp of their rapidly growing strength. 
 
 The Continental Congress which met in Philadelphia in 
 1774 was the result of the zeal and activity of this committee. 
 I^ot yet, however, was the idea or purpose of resistance openly 
 avowed. The object of the Congress was to obtain redress 
 from England and security for the future, and for these pur- 
 poses to negotiate with the British Government. Two years 
 were thus spent in fruitless efforts, and then at last followed 
 the decisive step of the Declaration of Independence on the 
 fourth of July, 1776. 
 
 War had, however, already commenced. The Continental 
 Congress was not a Government. It was a mere Council of 
 Delegates from the States. But a Government was necessary 
 to carry on the war. This was soon felt, and the result was 
 the Articles of Confederation, debated and agi-eed to by Con- 
 gress in 1777, accepted by the Legislatures of tlie States, and 
 ratified by Congress in 1781. The system thus created was 
 formed in the midst of war. It was really nothing more than 
 a Provisional Government, or, more properly speaking, an alli- 
 ance of separate States, who suddenly found themselves for 
 the first time separate and independent, at a moment when 
 united action was necessary for the common defence. The 
 Confederation had none of the attributes of a Government. 
 As its name implies, it was a league of sovereignties who had 
 never been sovereign before. It had no Legislature, for it 
 could not make laws ; it had no Executive, but in its place a 
 committee of one delegate from each State, to act in a very 
 limited sphere during the recess of Congress ; it had no Judi- 
 ciary, for it did not operate on individuals or affect private 
 rights ; above all, and for these reasons, it wanted power, — 
 the essential requisite of every Government. It addressed it- 
 self, not to persons, but to States, because it represented States, 
 and not the people. It therefore could not command ; it could 
 only recommend and request, and had no means to enforce 
 compliance. 
 
 Congress could not collect taxes, for this authority was re- 
 served to the States, each of which gave or withheld its quota,
 
 UNION. 131 
 
 as its Legislature chose. Congress might contract debts, but 
 it depended on the Legislatures of the States whether they 
 should be paid. Even for the purposes of the war, the Go- 
 vernment had no power to draft men, or to create an army or 
 a navy : these were furnished by the several States. Congress 
 had no control over the foreign relations of the country. It 
 had no power to regulate commerce or to enforce the observ- 
 ance of treaties. 
 
 It soon became obvious that the Confederation was ineffi- 
 cient, even as a Provisional Government, during the war. Its 
 want of power impeded the operations of the army. There 
 was no authority to draw out the resources of the country, for 
 all supplies of men or money were to be granted or withheld 
 by the Legislatures of thirteen different, jealous, often quarrel- 
 ling States, which even the urgent pressure of common danger 
 could not always urge to harmonious action. These evils were 
 the subject of frequent complaint by Washington. In a circu- 
 lar letter addressed to the Governors of the States he said : 
 " Unless the States will suffer Congress to exercise those pre- 
 rogatives they are undoubtedly vested with by the Constitu- 
 tion, everything must very rapidly tend to anarchy and confu- 
 sion. It is indispensable to the happiness of the individual 
 States that there should be lodged someAvhere a supreme power 
 to regulate and govern the concerns of the Confederated Re- 
 public." 
 
 The glaring defects of a Government that could not govern 
 had become evident to all, and were universally admitted be- 
 fore the war was over. They are thus summed up by Hamilton 
 in the fifteenth number of the Federalist: " There is scarcely 
 anything that can wound the pride or degrade the character 
 of an independent people, which we do not experience. Are 
 there engagements to which we are held by every tie respect- 
 able among men ? These are the subjects of constant and un- 
 blushing violation. Do we owe debts contracted in a time of 
 extreme peril for the preservation of our political existence ? 
 These remain without any proper or satisfactory provision for 
 their discharge. Have we valuable territories and important 
 posts in possession of a foreign power, which, by express stipu-
 
 132 THE TRIAL OF THE C N S T I T U T I X. 
 
 lation, ought long to have been surrendered ? These are still 
 retained, to the prejudice of our interests not less than our 
 rights. Are we in a condition to resent or repel the aggres- 
 sion? We have neither troops nor treasury nor Government. 
 ... To shorten an enumeration of particulars, it may in ge- 
 neral be demanded, what indication is there of national dis- 
 order, poverty and insignificance, that could befall a community 
 so peculiarl}" blessed with natural advantages as we are, which 
 does not form a part of the dark catalogue of our misfortunes?" 
 
 Such Avas the Government under which the American people 
 found themselves when Independence was achieved. They had 
 cast off forever the British central power, and this was the 
 substitute. They no longer formed part of the great British 
 Empire, and they Avere not themselves a Nation, but a cluster 
 of independent Nations, bound together by a feeble alliance, — 
 the source, not of strength, but of weakness, — not of harmony, 
 but of discord. As Colonies they had been strong and safe, 
 because they were protected by British power, and at peace 
 with each other, because governed by British law. They had 
 withdrawn themselves from the power of England, and the 
 want of it was immediately felt. Local authority they had, — 
 more than enough. But union was essential to their safety 
 and prosperity, and union was proved to be impossible without 
 a central authority strong enough to govern the Union. 
 
 During the war the minds of men Avere too much excited 
 and absorbed by its events to reflect upon their political condi- 
 tion or the causes of it. But when peace was restored, the 
 terrible reality of their situation Avas revealed. They had 
 fancied themselves a Union, but they discovered that they 
 Avere a number of Independent States, without cohesive force. 
 They had imagined themselves a Nation, but experience had 
 taught them that such a thing as a Nation Avithout a National 
 Government does not exist in nature. Something must be 
 done, — but Avhat, Avas the difificult question. The States were 
 jealous of their sovereignty. The people, just escaped from 
 the yoke of England, dreaded a central power, even though 
 they might control it. No one, hoAvever, could deny the de- 
 fects of the Confederation, or the evils that had groAvn up
 
 UNION. 133 
 
 under it. The alternative presented was, a stronger Govern- 
 ment for the Union or separation, with all its manifold dan- 
 gers and calamities. 
 
 Several abortive attempts were made to assemble conven- 
 tions to amend the Articles of Confederation, and to grant 
 further powers to Congress. At length the Legislature of 
 Virginia appointed delegates, who were authorized to meet 
 others chosen by the States, to take into consideration the 
 condition of the trade of the United States, and to report a 
 uniform system by which it might be regulated for their com- 
 mon interest. These delegates met at Annapolis on the 11th 
 of September, 1786. Only five States were represented. 
 Fortunately a master spirit, a man of genius, was one of this 
 small assembly. Hamilton saw that the task imposed on the 
 statesmen of the country, if they meant to save it, was some- 
 thing very different from the regulation of its trade. The 
 delegates, instead of discussing commercial questions, adopted 
 a. report written by him, recommending the appointment of 
 commissioners from all the States, " to meet at Philadelphia in 
 the following year, to take into consideration the situation of 
 the United States, and to devise such other measures as shall 
 appear to them necessary to render the Constitution of the 
 Federal Government adequate to the exigencies of the Union.' ^ 
 The proposition w^as favorably received. Deputies were ap- 
 pointed by all the States except Rhode Island. They met in 
 convention May 14th, 1787, and on the 25th of the same 
 month were organized by the appointment of Washington as 
 their President. The result of their deliberations was our 
 present Constitution. 
 
 Thus at length was discovered the only path out of danger. 
 The people had got their wise men together, and invested 
 them Avith plenary power, to do what no people can do for 
 themselves, — create a government. The Convention sat Avith 
 closed doors, and we have a very imperfect report of the de- 
 bates, the art of phonography not then being known. The 
 only authentic contemporary account that exists of the argu- 
 ments and reasons which governed the Convention in framing 
 the Constitution, is contained in a series of essays written by
 
 134 THE TRIAL OF THE CONSTITUTION. 
 
 Alexander Hamilton, John Jay and James Madison, for the 
 purpose of recommending it to the people. These essays have 
 been collected in a volume, called the Federalist, and are 
 vjiluahle, not only because they expound with great force and 
 clearness the principles of the Constitution, and are authority, 
 both legal and hietorical, but because they form an admirable 
 treatise on the general principles of government. They are 
 the work of men of fine intellect, who combined the culture of 
 liberal study with the experience of active public life, during 
 a stormy period of revolution and war, when the importance 
 of sound principles is most clearly revealed ; who had seen two 
 governments tried and fail, and Avere, therefore, instructed in 
 what was needed to make another. These essays are replete 
 with wisdom, — any one who reads them now, will say, with pro- 
 phetic wisdom, — and are written with scholarly clearness and 
 elegance. They are trustworthy witnesses of the past, and if 
 we could heed their teaching, would throw much light on the 
 dark future that lies before us. 
 
 I have already quoted the Federalist, to show the defects 
 of the Confederacy and the mischiefs it produced. I shall rely 
 on the same authority to explain the causes of those defects, 
 and the remedy applied to them, not because other authority 
 is wanting, but because that is the best, is familiar to most 
 readers, and is sufficient. 
 
 The Government of the Confederacy was inadequate to the 
 exigencies of the Union, because it was weak, and it was weak 
 because it was a league and not a nation. " The great and 
 radical vice," said Hamilton, in No. 15, "in the construction 
 of the existing Confederation, is the principle of legislation for 
 States or G-overn7nents, in their corporate or collective cajyacitieSy 
 and as contradistinguished from the individuals of whom they 
 consist. Though this principle does not run through all the 
 powers delegated to the Union, yet it pervades and governs 
 those on which the efficacy of the rest depends. Except as to 
 the rule of apportionment, the United States have an indefin- 
 ite discretion to make requisitions for men and money, but 
 they have no authority to raise either, by regulations extend- 
 ing to the individual citizens. The consequence is, that though
 
 UNION. 135 
 
 in theory their resolutions concerning these objects are laws, 
 constitutionally binding on the members of the Union, yet 
 in practice they are mere recommendations which the States 
 observe or disregard at their option. ... In our case the 
 concurrence of thirteen distinct sovereign wills is requisite 
 under the Confederation to the execution of every important 
 measure that proceeds from the Union. It has happened as 
 was to have been foreseen, — the measures of the Union have 
 not been executed ; the delinquencies of the States have, step 
 by step, matured themselves to an extreme, which has at 
 length arrested all the wheels of Government and brought 
 them to an awful stand. Congress at this time scarcely 
 possess means of keeping up the forms of administration, till 
 the States can have time to agree upon a more substantial 
 substitute for the present shadow of a Federal Government. 
 . . . Each State, yielding to the persuasive voice of im- 
 mediate interest or convenience, has successively withdrawn 
 its support, till the frail and tottering edifice seems ready to 
 fall on our heads and crush us beneath its ruins." 
 
 I might cite other passages equally conclusive as to the 
 causes of the defects of the Confederacy, but shall only add 
 one more from I^o. 20, by Madison. After describing the 
 Amphictyonic and AchtTean leagues of antiquity, which, he 
 says, bore a " very instructive analogy " to the American Con- 
 federacy, and the Germanic Association and that of the United 
 Netherlands and the Polish Constitution, all of which were 
 marked by " imbecility in the government ; discord among 
 the provinces ; foreign influence and indignities ; a precarious 
 existence in peace and peculiar calamities from war," — he 
 thus sums up the causes of the failure of all. "I make no 
 apology for having dwelt so long upon the contemplation of 
 these federal precedents. Experience is the oracle of truth, 
 and where its responses are unequivocal, they ought to be 
 conclusive and sacred. The important truth which it unequivo- 
 cally pronounces in the present case is, that a sovereignty 
 over sovereigns, a government over governments, a legis- 
 lation for communities as contradistinguished from individuals, 
 as it is a solecism in theory, so in practice it is subversive of
 
 136 THE TRIAL OF THE CONSTITUTION. 
 
 the order and end of civil polity, by substituting violence in 
 the place of laic, or the destructive coercion of the sword in the 
 place of the mild and salutary coercion of the magistracy." 
 
 Such were the defects of the Confederation and the causes of 
 them. What was the remedy ? Obviously to create a real 
 Government, that is to say, a Government which could com- 
 mand and not be obliged to request, which could act directly 
 by means of its own laws and courts and executive officers, 
 upon persons and things and not by requisition upon inde- 
 pendent States. " If we still adhere to the design of a National 
 Government," said Hamilton in No. 15 of the Federalist, "or 
 which is the same thing, of a superintending power, under the 
 direction of a common council, we must resolve to incorporate 
 in our plan those ingredients which may be considered as form- 
 ing the characteristic difference between a league and a govern- 
 ment ; we must extend the authority of the Union to the per- 
 sons of the citizens, — the only proper objects of Government. 
 ... In an association where the general authority is con- 
 fined to the collective bodies of the communities that compose 
 it, every breach of the laws must involve a state of war and 
 military execution must become the only instrument of civil 
 obedience. Such a state of things can certainly not deserve 
 the name of Government, nor would any prudent man choose 
 to commit his happiness to it." Again in No. 21. " The 
 next most palpable defect of the existing Constitution is the 
 total want of sanction to its laws. The United States as now 
 composed have no power to exact obedience or punish diso- 
 bedience. . . . There is no express delegation of authority 
 to use force against delinquent members, and if such a right 
 should be ascribed to the Federal head, as resulting from the 
 nature of the social compact between the States, it must be by 
 inference and construction in the face of that part of the 
 second article in Avhich it is declared, ' that each State shall 
 retain every power, jurisdiction and right not expressly dele- 
 gated to the United States in Congress assembled.' . . . 
 If we are unwilling to impair the force of this applauded 
 passage, we shall be obliged to conclude, that the United 
 States afford the extraordinary spectacle of a Government
 
 UNION. 137 
 
 destitute even of the shadow of constitutional power to en- 
 force the execution of its own laws." 
 
 These extracts might be greatly extended. They all lead 
 to one conclusion, that the Confederation was a failure because 
 it was not a nation, and that to avoid the impending dangers of 
 separation, a Government must be formed with powers " ade- 
 quate to the exigencies of the Union." " These powers," he 
 says in No. 23, "ought to exist ivithout limitation, because it 
 is impossible to foresee or to define the extent and variety of 
 national exigencies, and the correspondent extent and variety 
 of the means which may be necessary to satisfy them. The 
 circumstances that endanger the safety of nations are infinite ; 
 for this reason no constitutional shacJcles can wisely l)e im- 
 posed on the power to which the care of it is committed." 
 
 Let us now compare these passages with the picture drawn 
 by Burke of the British Union and the power of Parliament 
 over it, given in the extract from his speech already quoted. 
 Does he not point to the same defects and the same causes of 
 them and the same remedies that are indicated by Madison 
 and Hamilton. When Burke says, " Gentlemen who think 
 the powers of Parliament limited, may please themselves to 
 talk of requisitions. But suppose the requisitions are not 
 obeyed. . . . Suppose one or two hang back and easing 
 themselves, let the stress of the draft lie on the others ?" Is 
 not that precisely what Hamilton complained of in the con- 
 duct of the States under the Confederation ? And what is the 
 remedy ? Hamilton and Burke proposed the same. " Surely 
 it is proper," says the latter, " that some authority might 
 legally say, ' Tax yourselves for the common supply, or Par- 
 liament will do it for you.' " " The Government of the 
 Union," says Hamilton, " must carry its agency to the per- 
 sons of the citizens. It must stand in aid of no intermediate 
 legislation, but must itself be empowered to employ the arm of 
 the ordinary magistrate to execute its own resolutions. The 
 majesty of the national authority must be manifested through 
 the medium of its courts of justice. The Government of the 
 Union, like that of each State, must be able to address itself 
 immediately to the hopes and fears of individuals." (No. 16.)
 
 138 THE TRIAL OF THE CONSTITUTION. 
 
 And when he afterwards, as already quoted, decLared that 
 for the preservation of the Union and the safety of the na- 
 tion, the powers of the National Government ought to be 
 without limitation, and that no constitutional shacJcles can 
 wisely be imposed on them, does he say less than Mr. Burke 
 did, when speaking of the necessary omnipotence of Govern- 
 ment in its imperial and conservative character, in relation to 
 all parts of the Empire, he said that Parliament " super- 
 intends all the several inferior Legislatures, and guides and 
 controls them Avithout annihilating any ? As they are all co- 
 ordinate to each other, they ought all to be subordinate to her, 
 else they can neither preserve mutual peace, nor hope for mu- 
 tual justice, nor eflfectually afibrd mutual assistance. . . . 
 And in order to enable Parliament to answer all these ends of 
 provident and beneficent superintendence, her powers must 
 be boundless." 
 
 If the writers of the Federalist, therefore, are authority on 
 this subject, — and two of them sat in the Convention that made 
 the Constitution, — our General Government is invested with 
 the same power over the fact of Union, to preserve it or to dis- 
 solve it, that is possessed by an English Parliament. In its 
 relation to the States, the General Government is placed in 
 the same position that the British Government held to the 
 Colonies, with this difference, that the people of the States are 
 represented in the Federal Government, whereas the Colonies 
 Avere not represented in Parliament, the only grievance of 
 which tliey complained. This defect was stated with great 
 force by Mr. Burke, in his speech on " Conciliation with 
 America," of March 22, 1775, and he lamented as impracti- 
 cable, because of the intervening ocean, tlie application of the 
 same remedy, legislative union, which had been successful in 
 the case of Wales and the counties palatine of Chester and 
 Durham. These had always been rebellious and intractable 
 until they Avere allowed to send members to Parliament, and 
 thenceforth Avcrc loyal and tranquil, thus demonstrating, as
 
 UNION. 139 
 
 he said, ''that freedom, and not servitude, is the cure for 
 anarchy." 
 
 The union between England and Scotland is another example 
 of similar success. It was not cited by Mr. Burke on that 
 occasion, because he was speaking of the government by Par- 
 liament of dependent States, and Scotland never was depen- 
 dent, but the case was cited by Mr. Jay in the Federalist, No. 
 5, as an example worthy our imitation. I have already 
 pointed out the close analogy in all essential principles, and 
 also the difference between the Scotch and English Act of 
 Union and our Constitution, and Ave now see, in the relation 
 of the Colonies to the parent country, the origin of the diifer- 
 ence, which consists in the separate government of the States. 
 When Scotland sent members to the English Parliament, she 
 ceased to have a Parliament of her own, because it was no 
 longer necessary, one legislature being sufficient for a country 
 of such limited size. Had it been deemed practicable for 
 America to send members to Parliament, the Colonies would 
 have retained their local governments, because the extent of 
 the country and its distance from England would have ren- 
 dered legislation for it impossible. Our ancestors thus had 
 two models before them, and they combined both in their 
 scheme of Government, — an incorporate legislative union for 
 all general purposes, and separate State governments for all 
 local purposes. They intended to give the General Govern- 
 ment powers "adequate to the exigencies of the Union," for 
 these were the words of the original resolution of the Com- 
 missioners who met at Annapolis, and of the State Legisla- 
 tures when they sent delegates to the Convention. " Powers 
 adequate to the exigencies of the Union," mean, as explained 
 by the Federalist, supreme authority over it. 
 
 The defect of the Confederacy was that it was a league of. 
 independent States. The object of the Constitution was to 
 create a nation. For this purpose, legislative, executive and 
 judicial power was provided, to act directly upon individuals^ 
 and it was declared that the Constitution and the laws made 
 in pursuance thereof, should be the " supreme Imv of the land, 
 anything in the constitution or laws of any State to the con-
 
 140 THE TRIAL OF THE CONSTITUTION. 
 
 trary notwithstanding." For all purposes, therefore, within 
 the jurisdiction of the General Government, the States have 
 no existence. The Government acts directly upon the people, 
 and the people are the nation. 
 
 The delegates to the Convention that made the Constitution 
 were chosen by the Legislatures of the States ; but the Consti- 
 tution was accepted and ratified,* not by those Legislatures, but 
 by conventions chosen by the people for the purpose. As soon 
 as it was ratified, the States under the old Confederacy ceased 
 to exist. They were annihilated by the express terms of the 
 compact. Other States of a different character were created. 
 Another central Government of a diff"erent character was also 
 created. Il^othing remained of the old Confederacy, or of the 
 States which composed it. Upon the new States various re- 
 straints were imposed which were not recommendations, but 
 commands ; for at the same time a Government was provided 
 with power to act upon individuals so as to secure obedience. 
 What remained to the States ? All the powers not impliedh/ 
 granted to the General Government. This will be seen by a 
 comparison of clauses already quoted, — one from the Articles 
 of the Confederacy, the other from the Constitution. The 
 former declares (Art. 2) that " each State retains its sove- 
 reignty, freedom, and independence, and every power, jurisdic- 
 tion, and right, which is not by this Confederation expressly 
 delegated to the United States in Congress assembled." !N^o 
 provision of this sort was contained in the Constitution as 
 made by the Convention. The chief object of the new system 
 was to limit and modify the sovereignt}^ and independence of 
 the States, which had been the cause of all the evils that made 
 a new system necessary, and to introduce a supreme power 
 strong enough to control the States. But then, as since, the 
 people were attached to their local governments, and dreaded 
 central autliority. These feelings caused the failure of the 
 Confederacy, almost prevented the formation of the Union 
 ttnder the Constitution, have from time to time threatened its 
 existence, and, finally, have destroyed it, — whether beyond 
 hope of restoration depends oii the chances of war. To satisfy 
 such jealous fears, an amendment Avas added in these words :
 
 UNION. 141 
 
 " The poAvers not delegated to the United States by the Con- 
 stitution, nor prohibited by it to the States, are reserved to 
 the States respectively, or to the peojyle." 
 
 The difference between the language of this article and that 
 of the Confederation marks clearly the change that had been 
 made in the Government, l^ot a word is said in the former 
 about the "sovereignty and independence" of the States: the 
 reserved powers are not those of the States only, but of the 
 people also ; and when defining the authority delegated to the 
 General Government and prohibited to the States, the word 
 " expressly" is omitted. That it was intentionally omitted is 
 proved by the fact that the conventions of Massachusetts, New 
 Hampshire, and South Carolina, recommended an adherence 
 to the phraseology of the Articles of the Confederation.* 
 
 The tenth article of the Amendments, indeed, like the second 
 article of the Confederation, Avas merely declaratory. The Con- 
 federation toas a Government of sovereign and independent 
 States, Avhich had formed an alliance for general purposes. 
 The new Union was not a government of States at all, but of 
 a Nation, — of a people, — w'ith powers acting, not upon States, 
 but upon individuals. It was a combination of central and 
 local power, each supreme in its sphere, and was, therefore, as 
 Mr, Madison described it, of a composite character, — partly 
 Federal and partly National. f But the National character 
 necessarily predominated, because the whole is greater and 
 more important than any of its parts. The power of the whole 
 must be, to a great extent, incapable of definition or restric- 
 tion, because it is impossible to foresee all the cases which may 
 require its exercise. Implied power was therefore given to 
 the central Government, not merely by the language of the 
 tenth article of the Amendments purposely modifying the se- 
 cond article of the Confederation, but by a clause in the Con- 
 stitution expressly granting that general authority which every 
 Government must possess for its own preservation. By the 
 eighth section of Article I, the powers of Congress, which are 
 
 * Towle's History and Analysis of the Constitution, 240. 
 t Federalist, No. 39.
 
 142 THE TRIAL OF THE CONSTITUTION. 
 
 ordinary legislative powers, are enumerated ; and then, to pro- 
 vide for possible omissions and miforeseen cases, this clause is 
 added : " Congress shall have power to make all laws which 
 shall be necessary and proper for carrying into execution the 
 foregoing powers and all other pavers vested by this Constitu- 
 tion in the Government of the United States, or in any depart- 
 ment or officer thereof." 
 
 Now, what is the meaning of the words " all other powers 
 vested in the Government oi the United States?" They do 
 not mean those already enumerated as belonging to Congress, 
 but something in addition thereto, for they are classed as " the 
 foregoing powers." They do not mean the authority conferred 
 upon the Executive and Judiciary, for that is included in the 
 phrase "any department or officer thereof." Read by the 
 light of history and the guiding expositions of the Federalist, 
 Avritten by the ablest of the makers of the Constitution, these 
 words, "other powers of the Government," Avhich was created 
 to found and preserve the Union, mean, that the Government, 
 considered as a whole, must possess all powers, whether enu- 
 merated in the Constitution or not, "adequate to the exigen- 
 cies of the Union." And what are these powers, thus con- 
 ferred in general terms, beyond those expressly mentioned ? 
 Are they not, in their nature, as Hamilton described them, ' 
 "illimitable," "boundless," — on which "no constitutional 
 shackles can be wisely imposed?" Do they not constitute 
 that "imperial character" described by Burke which must be- 
 long to every central government for its own preservation ? 
 
 Why, then, it may be objected, if implied power so ample 
 was conferred by the clauses quoted above, was the Fifth Ar- 
 ticle introduced, providing a process for amending the Consti- 
 tution ? 
 
 I have endeavored to show, in the preceding chapter, that 
 power for this purpose must be lodged somewhere, because the 
 Constitution must be altered to suit the Avants of the people 
 and to remedy defects in it revealed by time, or it must be de- 
 stroyed ; that the mode prescribed by the Fifth Article is so 
 intricate and difficult of application that it can rarely be em- 
 ployed for the purpose, and never on a sudden emergency;
 
 UNION. 143 
 
 and, therefore^ that the power must, when necessity requires, 
 be exercised by Congress with no other restraint than the Avill 
 of the people, expressed at the elections. 
 
 These are deductions from general principles, applicable to 
 all governments, and an examination of the history of the Con- 
 stitution, as well as of its provisions, leads to the same conclu- 
 sion, and it is satisfactory to find the results of abstract 
 reasoning borne out by facts. 
 
 We have seen that the defects of the Confederacy Avere 
 caused by want of power in the Government to make and 
 execute laws, and that therefore the States were totterins: on 
 the verge of the ruin threatened by disunion. We have seen 
 also, that in order to form "a more perfect Union," our Con- 
 stitution created a National Government, with powers expressed 
 and implied, deemed adequate for the purpose, and very differ- 
 ent from those of the Confederacy. There can be no better 
 guide to the meaning of the Convention than the alterations 
 they made in the Articles of Confederation, which they in 
 part adopted. Those articles also had a clause providing for 
 amendments. It was in these words : " The Articles of this 
 Confederation shall be inviolably observed by every State, and 
 the Union shall be perpetual ; nor shall any alteration at any 
 time hereafter be made in any of them, unless such alteration 
 be agreed to in a Congress of the United States, and be after- 
 wards confirmed by the Legislature of every State." We here 
 see it expressly declared, that the articles could be altered 
 only in the prescribed manner. That they were not altered 
 in that manner, but abolished altogether in quite a different 
 manner, is a significant fact to prove the uselessness and danger 
 of such restrictions. No such barrier is erected by the Fifth 
 Article of the Constitution. The words are : " Congress, 
 whenever two-thirds of both Houses shall deem it necessary, 
 shall propose amendments," &c. It does not say that no 
 amendments shall be made, imless in the appointed manner. 
 In this respect it differs, and we must suppose intentionally, 
 from the similar provision in the Articles of the Confederation. 
 And why does it differ ? For the same reason, that the clause 
 already quoted in reference to powers reserved to the States
 
 144 THE TRIAL OF THE CONSTITUTION. 
 
 and the people, differs from a similar clause in the same arti- 
 cles ; for the same reason, that after enumerating the powers 
 granted to the Legislature, a clause is added, giving general 
 powers, lest those defined might prove insufficient ; and this 
 reason was that the Convention intended to make a strong 
 government instead of a weak one, a nation instead of a loose 
 league of States. 
 
 It is a rule for the interpretation of any instrument, that 
 all parts of it should he allowed some meatiing, and he so con- 
 strued if possihle as to make it a harmonious whole. The 
 Constitution was made with great care. Every clause in it 
 was deliherately considered, and no part, therefore, should by 
 us be lightly disregarded. Every article was intended to bear 
 a logical relation to all the others. Considered, therefore, 
 with reference to the clauses already quoted, and in connection 
 with the article of Confederation above' mentioned, what does 
 this Fifth Article mean ? Does it mean that no amendments 
 shall be made unless in the appointed manner ? This cannot 
 be the meaning for three reasons : first, it docs not say so, and 
 a matter so important would have been expressly stated. 
 Secondly, the similar article in the Articles of Confedera- 
 tion does say so, and the difference proves an intention to differ, 
 because the commission given to the Convention was to alter 
 and amend those articles.* Third, such a restriction would 
 be inconsistent with the ir .plied powers granted in the clauses 
 already referred to. 
 
 We must, therefore, understand the Fifth Article, as pro- 
 viding one mode by which amendments may be made, not as 
 excluding others. It would be better to adopt that mode if 
 possible, but should necessity require it, the Government is 
 clothed by the Constitution with power adequate to any emer- 
 gency. The Fifth Article is adapted to quiet times and peace- 
 ful discussions, and to great organic changes in the Govern- 
 ment, Avhich should be made always with deliberation and 
 forethought. Should the Government overstep the limits im- 
 posed by the Constitution, under the stress of circumstances 
 
 * Federalist, No. 40.
 
 UNION. 145 
 
 which made it impossible to call into action the machinery of 
 the Fifth Article, such an act would be either a temporary in- 
 fringement or a permanent change in the law. If the former, 
 a resort to the process of amendment would be unnecessary ; 
 if the latter, it certainly would be desirable, in order to ratify 
 the change in the most solemn and formal manner possible. 
 In neither case would the act of the Government be void, for 
 its implied powers cover such cases. But should such action 
 introduce organic change it might, nevertheless, be impossi- 
 ble or inexpedient to resort to the means prescribed in the Fifth 
 Article to ratify the change, although the people might accept 
 and approve it. Must we therefore say that the Constitution 
 would be violated ? Would it not be wiser to say, that one of 
 its powers or instruments was not on that occasion employed ? 
 The case had not arisen when the mandatory part of the arti- 
 cle could take effect. l!«[either two-thirds of Congress, nor the 
 Legislatures of two-thirds of the States, had proposed amend- 
 ments. When this happens, Congress is directed to act in the 
 manner prescribed. But suppose it does not and cannot 
 happen. Has the Government for that reason no power to 
 save the Union by preserving the whole of its territory, or 
 parting with a portion of it, or coercing the States ; no power 
 to maintain the authority of the laws or the honor of the flag ? 
 Th« Fifth Article does not say so. No part of the Constitution 
 says so. On the contrary, the Constitution itself, its declared 
 purpose, its English models, its inherited principles, the opinion 
 of its ablest founders and contemporary advocates, and the 
 eternal, immutable laws of nature, on which all governments 
 rest, say, that the Government of the Union has and must have 
 unlimited power to preserve the Union and itself, through a 
 future whose exigencies can neither be limited nor defined. 
 
 The Act of Union between England and Scotland has been 
 already referred to in this chapter as the model after which 
 our own was in part planned, and the authority of Blackstone 
 and of a note to his text was quoted to show the British law. 
 
 10
 
 146 THE TRIAL or THE CONSTITUTION. 
 
 The "learned prelate" mentioned in that note was Bishop 
 Warburton, and it will not be uninstructive to introduce here 
 at length his remarks on the nature of an incorporate Union, 
 for they state clearly the philosophical principles on which it 
 must be founded. 
 
 " As in these incorporate Unions it commonly happens that 
 the fundamental articles are declai'ed by the contracting par- 
 ties to be unalterable, it hath become a question, whether the 
 new sovereignty can alter such articles without dissolving the 
 Union. The difficulty seems to arise from the very nature of 
 the Convention. Two independent States unite into one, on 
 certain conditions, declared by the contracting parties to be 
 unalterable. When these two States are equal, a new one 
 arises from their incorporation composed of two ; Avhen unequal, 
 the less is melted down into the more powerful : as in this latter 
 case one only of the contracting parties now subsists ; so in 
 the other neither of them. But gOod faith requires that all 
 contracts shall remain in force till dissolved by the mutual 
 consent of the contracting parties themselves ; but here the 
 contracting parties ai'e no longer in being, so that these articles 
 of Union would seem to be perpetual, though that condition 
 had not been expressly stipulated. On the other hand, the 
 incessant flux of human things necessitates society in the course 
 of time to make changes in the most fundamental parts of the 
 Constitution. This is the difficulty, which seems not to be well 
 solved, by only recurring to the common power of the sove- 
 reignty in repealing and changing laws, whose very title indeed 
 shows the absurdity of an irrevocable law, as such law would 
 tend to destroy the very poAver that puts it in force ; for the 
 reason of this act of power is founded on the supposition, that 
 the laws revoked by the sovereign were of the sovei'eigns en- 
 acting, which is not the fiict in the case before us. For the 
 articles of Union were before the incorporation, had for their 
 author poAvers diiferent from Avhat are noAv left for their abro- 
 gation, — one or both the contracting parties being no longer 
 existent. 
 
 " To justify any alteration, therefore, we must have re- 
 course to a higher principle, Avhich is not the right of this or
 
 UNION. 147 
 
 that sovereign, hut of society itself as such. Contracts be- 
 tween independent States are of the same nature as those 
 between individuals. Now a number of individuals, let it be 
 three hundred or three hundred thousand, agree in a state of 
 nature to form themselves into a civil society. The first con- 
 vention (or contract) by which the form of government is 
 agreed on, is between individuals, where the consent of every 
 one is necessrry to make him subject to it, and this form they 
 declare to be unalterable, as the only one they are willing to 
 exchange for their natural liberty. After this follows the 
 second convention, in which protection and allegiance are mu- 
 tually promised by sovereign and people, whereby the con- 
 tracting parties in the first became annihilated, and a new 
 factitious person is produced ; as appears from hence, that in 
 the first convention the consent of every one is necessary to 
 conclude him, in the second the majority is sufficient. Now, 
 who ever doubted that this new-created body had a right to 
 alter the form of government ? For the necessity arising 
 from the nature of things requiring an alteration, 'and the 
 contracting parties being no longer existent, their survivor 
 must needs be deemed their substitute on whom all their power 
 is devolved."* 
 
 Let us apply these truths, — for such they are, — to our 
 Union. The contracting parties were the States, equals, be- 
 cause each was sovereign and independent. By agreement, 
 the consent of nine instead of all was made necessary to the 
 completion of the contract. The object of the contract was 
 to form a new Government, in which they were to lose their 
 old and assume another nature. When, therefore, that Go- 
 vernment was made, the old Confederacy and the States that 
 composed it ceased to exist. Those States had absolute power 
 to create any form of government they chose. They are no 
 longer in being. What, then, has become of their power ? 
 It belongs to their survivor, which must be their substitute, 
 for any act of supreme sovereignty that necessity may re- 
 quire. They had the right to make of the Government what 
 
 * Warburton's Alliance in Church and State.
 
 148 THE TRIAL OF THE CONSTITUTION. 
 
 tliey pleased ; tlieir substitute has the same right. True, it 
 may be said, in the manner prescribed by the compact. But 
 such a condition woukl be a limit on the power of the substi- 
 tute, •whereas the power of the original parties was unlimited. 
 These parties are no longer in being. Society, as such, 
 that is to say, the people, the nation, only exists, and the 
 nation must have supreme power over its Government. 
 
 What then becomes of the rights of the States, may be 
 asked, if unlimited power is thus ascribed to the General Go- 
 vernment ? The old States of the Confederacy were annihi- 
 lated, it is true, by the adoption of the Constitution, but new 
 ones were by it created, which, if not sovereign and indepen- 
 dent, have absolute authority within their sphere. They form 
 an essential part of our system, which is both federal and na- 
 tional, and are necessary to satisfy the desire for local self- 
 government, which is a ruling element of the Saxon nature. 
 
 The answer is that the central power, how great soever it 
 may be, is under the control of the people, and represents 
 their opinions and will. They act upon it by means of the 
 elections, periodically, at short intervals, either as States or as 
 individuals. Every four years the people choose a President ; 
 every two years a House of Representatives ; every six years 
 the States choose a Senate. The Senate is the appointed 
 guardian of the rights of the States in their corporate cha- 
 racter. Each State has an equal vote in the Senate, so that 
 the smaller may not be overborne by the larger. No bill can 
 become a law without the concurrence of the Executive and a 
 majority of both Houses of the Legislature, or without the 
 sanction of two-thirds of the Legislature, should the President 
 refuse his consent. Granting, therefore, the unlimited power 
 of the Government over the Union and the Constitution, it 
 means nothing more than the unlimited power of a majority 
 of the people, acting both as a confederacy and as a nation. 
 An infringement of the Constitution by the Government will 
 be either approved by the majority of the people or disap- 
 proved. Their approbation must be regarded as evidence that 
 the act was wise and necessary. If it be against the will of 
 the majority, the next Congress can remedy the evil. Whilst
 
 UNION. 149 
 
 the representation of the States, as such, in the Senate, was 
 intended to secure their equality, yet, inasmuch as the State 
 LegisLatures who appoint the Senators are themselves elected 
 by the same people who choose the President and the House 
 of Representatives, and who are imbued with the feelings of 
 State pride and love of local power which characterize the na- 
 tion, the rights of the States are really as much under the 
 guardianship of these latter as of the Senate, and as likely 
 to be respected by them. 
 
 These are the only means by which the position of the 
 States is protected by the Constitution. Those means are 
 instruments by which the people can at all times limit or en- 
 large the action of either central or local power, maintain a 
 just balance between the two, and control the Union, — to pre- 
 serve it, to dissolve it, to add to it, or to diminish it, as cir- 
 cumstances may require. The State Governments add greatly 
 to the strength of local as opposed to central authority. They 
 are organized bodies, always ready to act, either by their Exe- 
 cutives or Legislatures, or both. A violation of the constitu- 
 tional rights of one State would menace the rights of all. The 
 Government of the State which supposes itself injured would 
 at once sound the alarm, and might count on the sympathy 
 and support of the others in all legal means of redress, and, 
 those failing, in extra legal means, — forcible resistance, — 
 unless, indeed, the act of the General Government was one 
 approved by the majority of the people. 
 
 These defences are all that the case admits of, and they are 
 more than sufficient. The danger to our institutions lies, as 
 the writers of the Federalist predicted and as experience has 
 proved, not in the strength but in the weakness of central as 
 compared with local power. The encroachments to be dreaded 
 are those of the States on the General Government, — not of 
 the General Government on the States. Such must be the 
 case, because local attachments are much stronger than any 
 feeling, for a country so extensive and diversified as ours, can 
 possibly be. An Englishman loves England, a Scotchman 
 Scotland, an Irishman ^Ireland, a thousand times more than 
 either of them loves the British Empire. So it is with us, not
 
 150 THE TRIAL OF THE CONSTITUTION. 
 
 only in relation to States, but to groups of States. New Eng- 
 land, the Northwest, the Middle States, the South, are becom- 
 ing more and more distinctly marked and united by their inte- 
 rests, their manners, and their sentiments every day, and w-ould 
 each make common cause in resisting a violation of the rights 
 of any one of their number. It was attachment to local power 
 that caused the separation of the Colonies from England. The 
 same feeling opposed almost insurmountable obstacles to the 
 adoption of the Constitution, has since more than once threat- 
 ened the existence of the Union, and at length has caused the 
 present war, which may perhaps destroy it. 
 
 Mr. Madison was therefore prophetic when he said that 
 " the first and most natural attachment of the people will be 
 to the Governments of their respective States. ... A local 
 spirit will infallibly prevail much more in members of Con- 
 gress than a national spirit in the Legislatures of the States. 
 . . . Ambitious encroachments of the Federal Government on 
 the authority of the State Governments would not excite the 
 opposition of a single State or of a few States only. They 
 would be signals of general alarm. Every State Government 
 w'ould espouse the common cause. A correspondence would be 
 opened. Plans of resistance would be concerted. One spirit 
 would animate and conduct the whole."* The language of 
 Hamilton is to the same effect: "It may safely be received as 
 an axiom of our political system, that the State Governments 
 will in all possible emergencies afford complete security against 
 invasions of the public liberty by the national authority. Pro- 
 jects of usurpation cannot be masked under pretences so likely 
 to escape the penetration of select bodies of men, as of tlic 
 people at large. The Legislatures will have better means of 
 information; they can discover the danger at a distance; and, 
 possessing all the organs of civil power and the confidence of 
 the people, they can at once adopt a regular plan of opposi- 
 tion, in which they can combine all the resources of the com- 
 munity. They can readily communicate with each other in 
 
 * Federalist, No. 46.
 
 UNION. 151 
 
 the different States, and unite their common forces for the 
 protection of their conunon liberty."* 
 
 It might happen, certainly, that a tyrannical majority would, 
 notwithstanding all these securities, persist in unjust and op- 
 pressive measures. But no Constitution can guard against a 
 determined violation of duty by every branch of the Govern- 
 ment, or provide for all the dangers that a fertile imagination 
 may conjure up. The most limited powers are capable of un- 
 limited abuse, for it is impossible to confer power without also 
 conferring the ability to abuse it. A Government that is con- 
 stantly under the control of the people will be what the people 
 choose to make it. The fault must therefore be in them, should 
 it fail, for they have absolute power over both its administra- 
 tion and its form. The central Government cannot disregard 
 the reserved privileges of the States, except by the consent of 
 a majorit}' of them, given by their vote in the Senate. Should 
 such an act be necessary to the safety of the Union, then it 
 would be a just and wise exercise of the supreme power which 
 every Government must possess for its own preservation. 
 Should it be unnecessary or inexpedient, the next Congress, 
 representing both the States and the people, could and would 
 remedy the mistake. Should the case be one of criminal 
 usurpation, with a design to injure and oppress, or to create a 
 revolution in which all branches of the Government joined, it 
 is one against which no Constitution can provide ; and, there 
 being no legal means of redress, the only resort is to that ulti- 
 mate natural right of self-defence, to which our ancestors ap- 
 pealed when they withstood the power of England. 
 
 It thus appears that our Constitution actually does, what it 
 was intended to do, create a Government " adequate to the 
 exigencies of the Union." These Avords mean now just what 
 they meant when the Constitution was made, — a Government 
 adequate to the preservation of such a Union as the people 
 
 * Federalist, No. 28.
 
 152 THE TRIAL OF THE CONSTITUTION. 
 
 choose to have or are able to have. When the Constitution was 
 ratified the Union consisted of thirteen States. Before the 
 present Avar, it consisted of thirty-four. Between these two 
 points it has been constantly changing. What it will he when 
 the war ends, no one can predict. The title is ambulatory 
 and must be so of necessity. But this much is certain, that 
 the Government representing the majority of the States and 
 of the people must have absolute power over the Union, in 
 order to be adequate to its exigencies, for these exigencies are 
 illimitable as the chances of futurity, and may demand that the 
 Union be either maintained or dissolved by mutual consent or 
 against the consent of some of its members. 
 
 The American people, acting in the double capacity of 
 States and of a people, agreed to form a Government that should 
 be a confederacy and a nation. In its Federal character, 
 that Government may rightfully maintain the Union, as it 
 exists at any given time, or consent to the Avithdrawal of some 
 of its members, or expel those whose presence is injurious to 
 the others, and yet the Union in a legal sense would still 
 remain, for the Constitution does not limit its size, and that 
 which contains the majority of the people, Avhich retains the 
 insignia of power, the name and the flag, and maintains the 
 continuity of authority, is the legal Union. In its national 
 character the Government may defend and keep, if it can, the 
 whole of its territory or dispose of a part of it as necessity or ex- 
 pediency may require ; whilst, as I have already shoAvn, merely 
 as a Government, the creature of a compact by virtue of which 
 the contracting parties ceased to exist, and which therefore is 
 their substitute and the inheritor of their poAver, it has and 
 must liave supreme authority, as representing the majority of 
 the people, to do Avhatever may be necessary for the accom- 
 plishment of these purposes. 
 
 It Avould be a Avaste of words to argue that the preservation 
 of the Union is one of the " exigencies " for Avhich the Govern- 
 ment has ample poAver. It Avas made for that very purpose.
 
 UNION, 153 
 
 Upon this point our convictions ought to be clearer, for our 
 experience is larger than that of our ancestors. They had 
 felt the evils of a weak and partial Union, and saw immediately 
 before them the manifold dangers of complete separation. All 
 these we now feel and see, and they appeal to us with greater 
 force, because we have so long enjoyed the unspeakable bless- 
 ings of that " more perfect Union " which the Constitution 
 was intended to create and did create. The only Union to 
 which our ancestors could look back was that of the Con- 
 federacy, so prolific of disaster, and to their position as colonies 
 of England, connected with painful memories of dependence 
 and oppression, but which, bad as it was, was better than the 
 chaos threatened by separation. They knew well what centu- 
 ries of disastrous war led at length to the Union of England 
 with Scotland, and they could see nothing before them as a 
 consequence of the separation of the States but perpetual 
 war ; war between the States and alliances made by these with 
 European powers leading to foreign war. Therefore all the 
 great men of the day were earnest in their exhortations to pre- 
 serve the Union, and exhausted their powers of argument and 
 persuasion to prove its importance, or rather its absolute ne- 
 cessity, as the condition of all national power, glory and happi- 
 ness. The counsels of Washington were animated throughout 
 by this spirit, and particularly his Farewell Address, and the 
 writers of the Federalist were eminent advocates of the same 
 opinions. Those who are disposed now to think lightly of the 
 Union, may read with advantage the numbers of that work de- 
 voted to the subject. I shall make but one extract, which has 
 peculiar significance to us at the present time. It relates to 
 the risks of a standing army, which in England have been 
 averted by Union and her insulated position, and which here 
 might be averted by Union and the ocean which separates us 
 from Europe. 
 
 " The Union itself," says Mr. Madison, " which the Consti- 
 tution cements and secures, destroys every pretext for a 
 military establishment that could be dangerous. America 
 united, with a handful of troops or without a single soldier, 
 exhibits a more forbidding posture to foreign ambition than
 
 154 THE TRIAL OF THE CONSTITUTION. 
 
 America disunited -with an linndred thousand veterans, ready 
 for combat. . . . Being rendered by her insular position, 
 and her maritime resources impregnable to the armies of her 
 neighbors, the rulers of Great Britain have never been able, 
 by real or artificial dangers, to cheat the public into an ex- 
 tensive peace establishment. The distance of the United 
 States from the po^verful nations of the world gives them the 
 same happy security. A dangerous establishment can never 
 be necessary or plausible so long as they continue a united 
 people. But let it never for a moment be forgotten that they 
 are indebted for this advantage to their Union alone. The 
 moment of its dissolution will be the date of a new order of 
 things. . . . Instead of deriving from our situation the 
 precious advantage which Great Britain has derived from 
 hers, the face of America will be but a copy of that of Europe. 
 It will present liberty crushed everywhere between standing 
 armies and perpetual taxes. The fortunes of disunited America 
 will be even more disastrous than those of Europe. ,The 
 sources of evil in the latter are confined to her own limits. 
 No superior powers of another quarter of the globe intrigue 
 among her rival nations, inflame their mutual animosities, 
 and render them the instruments of foreign ambition, jealousy 
 and revenge. In America the miseries springing from her 
 internal jealousies, contentions and wars would form a part 
 only of her lot. A plentiful addition of evils would have 
 their source in that relation in which Europe stands to this 
 quarter of the earth, and which no other quarter of the earth 
 bears to Europe."* 
 
 Union and isolation have also secured Great Britain from 
 invasion and from the devastations of war which have con- 
 stantly visited the nations of the Continent. England has thus 
 become a hive of industry and a storehouse of the vast trea- 
 sures of useful and beautiful tilings, created by art and accu- 
 mulated by wealth and taste tlirough long centuries. The 
 island is covered Avith cities and towns and factories, and 
 happy homes, of all grades, from the yoeman's cottage to the 
 
 * Federalist, No. 41.
 
 UNION. 155 
 
 nobleman's hall and castle, whose parks and gardens and well- 
 tilled fields have never, for many generations, been trodden 
 by the foot of an enemy. All that the arts of peace have 
 produced have therefore been garnered and guarded from the 
 destroying touch of Avar, whilst the warlike genius of the people 
 has found ample scope for exercise and for triumph beyond 
 the encircling sea. It was not so before the Union. It will 
 not be so with us when our Union is destroyed, as the South- 
 ern States, desolated now by contending armies, may testify. 
 
 The question of Union, therefore, is now to us precisely 
 what it was to England, Scotland and Ireland, and what it 
 was to our ancestors in 1787. Shall we be a great and power- 
 ful nation, with free institutions, strong enough to withstand 
 the world in arms, and able to develop in peace and security 
 the unequalled resources of our great inheritance, or shall we 
 be divided into two, or perhaps four or five republics, jealous 
 of each other, each seeking to strengthen itself against the 
 other by internal or foreign alliances, and engaged in perpe- 
 tual war ? Shall we be a gigantic Britain, both a confederacy 
 and a nation, with central and local power, each acting in its 
 appropriate sphere, manifold and one, steadily pursuing our 
 mission to cover our vast domain Avith the monuments and 
 trophies of civilization, and to make it the home of liberty, 
 science and refinement ; or shall this ISTorthern Continent of 
 ours become another Europe, weighed down by taxes and 
 standing armies^ governed by royal families and intersected 
 by lines of fortresses and custom-houses ? 
 
 This question, long foreshadowed, is noAV brought home 
 to us as a practical reality. Was the idea we so long 
 cherished of a great republic a mere dream, and our faith in 
 self-government a delusion ? Can we, as one people, keep 
 this magnificent territory, stretching from ocean to ocean and 
 almost from the arctic to the torrid zone, as an undivided 
 whole, or must we parcel it out into separate sections, each 
 giving up its share and interest in all the rest ? This is the 
 question for us to-day. It is one that the central Govern- 
 ment has a right to decide, if the principles advanced in this 
 and the foregoing chapter be correct. It is one which each
 
 156 THE TRIAL OF THE CONSTITUTION. 
 
 State has a right to decide, according to certain doctrines which 
 have had great influence in our politics. What may turn out 
 to be the judgment of the majority of the American people 
 about it, belongs to the future, though from present indica- 
 tions they may be expected to say, that the Government has a 
 right to preserve the Union, if it can. Whether they have or 
 have not the constitutional authority. Congress and the Presi- 
 dent have undertaken to exercise it, trusting to the support of 
 the people. Under the circumstances, it was impossible to 
 appeal to the Fifth Article to decide the question of power. 
 The Government was obliged either to permit the Union to be 
 destroyed by armed violence, or to make war upon the rebel- 
 lion. It chose the latter, and whether within our former 
 limits there shall now immediately be one nation or more than 
 one, will depend upon the fortunes of that war. 
 
 That the preservation of the Union may depend on the for- 
 tunes of war, is clear proof that the Government must have 
 power to dissolve the Union or prove inadequate to the exi- 
 gencies that may grow out of war. The right to make war 
 includes necessarily the right to make peace. Cases may 
 arise in which it would be impossible to preserve the Union by 
 force, or unwise, unjust and inexpedient, and in such cases the 
 separation of resisting States would be a- necessary condition 
 of peace. The right to make war or peace includes also the 
 right to prevent war, by yielding to reasonable demands. 
 The future may disclose cases in wliich the demand for sepa- 
 ration would be reasonable, and therefore ought not to be re- 
 fused. The Constitution was intended to provide for all the 
 exigencies of the future, and the claims of justice and the 
 wants of the people. Among the last none are more impe- 
 rious and positive than the desire for local self-government, 
 and for the privilege of altering or abolishing their political 
 institutions. The Union was intended to be a benefit, not a 
 burden ; a guarantee of freedom, not a fetter. Should it be- 
 come a burden and a fetter, it will not be worth preserving, 
 and ought to be dissolved. But how is it to be dissolved ? By 
 mutual consent, with deliberation and due regard to all rights, 
 or amid the calamities, confusion, animosities and uncertain
 
 UNION. 157 
 
 results of civil war, leading of necessity to other wars ? The 
 former is surely the more desirable mode, and the only one 
 worthy of rational, Christian men. 
 
 That it may be adopted, the majority of the people and of 
 the States represented in the Govei-nment, must have the 
 power to decide upon the claim of a State or States to with- 
 draw from the Union. Either the Government has this power, 
 or it has no power to avoid civil war, which Avould inevitably 
 follow the refusal of a just and reasonable demand for sepa- 
 ration. Either the Government has this power, or it is bound ' 
 to preserve the Union, right or wrong, reckless of conse- 
 quences. The power is necessary for the preservation of the 
 Union, that is to say, as already explained, the Union of the 
 States willing to remain united under the Constitution, which 
 in any probable circumstances, we may expect to be, for many 
 years to come, a majority. But if the right to decide this 
 question is in the States severally, and not in the Government 
 representing all of them, or if the separation, forcible or per- 
 mitted, of some, is a severance of the legal tie that binds the 
 others and the destruction of the authority of the central Go- 
 vernment, then the future presents only this alternative : the 
 preservation of the Union by force forever, or should that be 
 impossible as to some of the States, the immediate division of 
 the country into as many nationalities as interest or inclina- 
 tion may lead the others to form. The protecting power of 
 the Government being withdrawn, motives of self-preservation 
 would at once induce such combinations. But Avith the cen- 
 tral power supreme, the evils of disunion might be restricted 
 to the loss of a part, — perhaps a small and insignificant or 
 even injurious part, — of our great domain, and the Union, or a 
 Union under the old Constitution and the existing authority, 
 large enough, rich enough, and strong enough for security and 
 national dignity, be preserved. 
 
 Our country, as it existed before this unhappy war, stretch- 
 ing from sea to sea, and through zones of varied climate and 
 production, with its lakes, its rivers, its coasts, its vast in- 
 terior spaces of fertility, producing in profusion supplies for 
 all wants ; our people, the most forcible and intelligent on
 
 158 THE TRIAL OF THE CONSTITUTION. 
 
 earth, peacofullj employed in cultivating and adorning tlieir 
 splendid domain, and at the same time advancing in all elegant 
 and useful knowledge ; our Government, with its central power, 
 like the sun, shedding liglit and warmth throughout the system, 
 and holding to their appointed orbits the local powers, without 
 disturbance of their separate motion ; such a country, such a 
 people, and such a Government, formed indeed a grand and 
 noble sjDcctacle. Was it not too grand and too noble to en- 
 dure ? Are there not causes that must sooner or later disturb 
 •the nice balance of a structure so artificial and elaborate ? 
 Does it not require for its working and preservation a combi- 
 nation of ability and power which cannot be supplied by the 
 people to the Government ? 
 
 We have now thirty-four States, including those in rebellion. 
 Others are yet to be formed out of territories now a wilderness. 
 These and many more, now thinly settled, are the destined seats 
 of populous and wealthy communities. Our people now number 
 thirty millions of the white race. The child is born that will 
 see them more than a hundred millions. Seventy or a hundred 
 years is a short period to look forward to in the life of a nation. 
 Forty or fifty States and a hundred millions of people, w'ith a 
 government elected by universal suffrage, maintaining central 
 power and local power in harmonious action, without hindrance 
 or collision, is, perhaps, among the possibilities of the future. 
 It is certainly not among the probabilities, for it has never 
 existed in the past. The Roman Empire became a military 
 despotism after it had failed as a republic, and then fell to 
 pieces as a despotism. The British Empire is governed by an 
 Imperial Legislature combined with an hereditary throne. Its 
 powder extends over about two hundred millions of people, and 
 five millions of S(|uare miles. About forty millions of these 
 people are of the white race, and together with the inferi'Or 
 races, are subject to a government of which one bi-anch only, 
 the House of Commons, is elected by a small minority of the 
 population of the home countries, which it is considered to 
 represent, and which amounts in all only to twxnty-seven 
 millions. Let us suppose that by timely concessions England 
 had retained all her American Colonies, which would have
 
 UNION. 159 
 
 given licr now an Empire of seventy millions of the superior 
 race, and that the whole, by universal sufirage, returned mem- 
 bers to the Houses of Parliament, and elected also a Supreme 
 executive magistrate every four years. 
 
 Is it conceivable that the Empire would hang together for a 
 quarter of a century ? Where would be the central power ? 
 In London, or in New York, or in Quebec, or in the East, or 
 would there not soon be several centres of power, as Rome, 
 notwithstanding the prevalent barbarism of the Provinces and 
 its military despotism, was soon divided into a Western and 
 Eastern Empire, and these again into smaller sections ? Would 
 not a domain so vast fall asunder b}' the weight of its several 
 parts unless braced by some external force, strong enough to 
 keep them together ? That external force is now the absolute 
 power of the home Government. But it was not strong enough 
 to hold us when we were three millions. It scarcely professes 
 now to hold Canada, and it retains the other dependencies, 
 only because they are not able to stand alone. If England 
 gave to her Colonies the right of representation in Parliament, 
 she would soon be turned out of doors, notwithstanding her 
 Lords and her Monarchy, as King Lear Avas by his daughters. 
 
 There are limits to the size of a nation, because there are 
 limits to human ability. Ever}^ addition brings with it new 
 objects to occupy the time, thought and labor of Government, 
 new wants to satisfy, conflicting claims to adjust, importunate 
 demands to answer, jealous rivalries to soothe. Increase of 
 territory, or wdiat amounts to the same thing, the growth of 
 wealth and population in extensive regions before a waste, 
 multiplies the details of business, adds to the number of offi- 
 cers, swells the revenue, and with it the danger of corruption. 
 The more rapidly a great nation advances in wealth, intelli- 
 gence and population, the more urgently does it require high 
 qualities in the Government, and great power also. But the 
 high qualities cannot be got by any process of universal suffrage 
 yet discovered, and the very intelligence and prosperity of the 
 people, render them jealous of power and restive even when 
 they control it. 
 
 The dominant passion of the Saxon race is for local self-
 
 160 THE TRIAL OF THE CONSTITUTION. 
 
 government. They submit unwillingly to a distant central 
 authority, though represented by it, and only for the sake of 
 protection, of security, of national power and greatness. But 
 in a country so vast as ours, the share of some parts of it in 
 the central authority may become too small to satisfy the 
 people of those parts. Local attachment is stronger than any 
 affection for a whole can possibly be. A section may find 
 itself in a permanent minority, always outvoted, and either 
 actually or liable to be oppressed and treated as an inferior. 
 A section may become so powerful, and at the same time may 
 be so divided by its interests, its manners and sentiments, and 
 by geographical lines from the rest, that it may feel able to 
 become independent, and to stand alone as a separate nation. 
 In that case it could combine within itself local and central 
 power, the latter more under the control of its people than 
 that of the existing General Government, and yet sufficient to 
 give it security as an independent State. Under these cir- 
 cumstances, and others that are supposable, the desire for 
 independence would arise. Independence would be demanded. 
 Must it be refused, however reasonable, however just the de- 
 mand might be, and however respectfully it might be made ? 
 And what power is there to grant it, to arrange the terms 
 and conditions of the grant, except that of the General 
 Government ? 
 
 This country, fully peopled or half peopled, is large enough 
 to make five or six great nations, each with its system of 
 central and local government. The time will come when it 
 will be so divided, with or without such a system for each of 
 its parts. Must there be a civil war at each division, because 
 the Constitution has not expressly granted to Congress power 
 to dissolve the Union ? Which is better, that these inevit- 
 able changes should occur, when in the fulness of time they 
 become necessary, amicably, by mutual consent and with a 
 just regard to all rights and careful provision for the future, 
 or that each separation should be attempted by rebellion, the 
 result of which would be, if successful, a revolution, followed 
 by years of bitterness and probable war ; if unsuccessful, the 
 forced obedience and subjection of the weaker party, in wdiich
 
 UNION. 161 
 
 there can be no true union. Would it not be wiser to preserve 
 the whole Union as long as possible, by wreathing the chains 
 of necessary authority with garlands of benefit and blessing, 
 so that if possible none shall wish to leave it, but when a 
 swarm is ready to have a hive of its own, to permit it to depart 
 with good wishes and friendly adieus, so that the kindness of 
 old fellowship and kin may be afterwards preserved ? 
 
 In this Avay only can the Union be maintained, not indeed 
 forever, for nothing human lasts forever, but the Constitu- 
 tional Union, the Union seceded from and whose Government 
 permits separation, may be maintained, though in process of 
 time it be reduced to less in number than the original thirteen 
 States, just as Britain when she lost her American colonies 
 was still Britain, and would be, were she to lose Canada and 
 India and be reduced to the home countries. It is very true 
 that with the separation of even an inconsiderable section, a 
 new era would commence. The separated portion might at 
 once seek to strengthen itself by foreign alliances with Euro- 
 pean nations and by intrigues to induce other States to join 
 it. Border wars and foreign wars would follow and the charm 
 of inviolability, of peace at home and security from abroad, so 
 long the happiness of America, as it has been and is of Eng- 
 land, would be broken. The principle of the balance of 
 power would at once begin its action and repeat here the his- 
 tory of the continent of Europe. All this we se« foreshadowed 
 in the present war. Only b}^ preserving the whole Union in 
 its integrity and its power can this fate be averted. It may 
 perhaps thus be avoided for the present and the evil day be 
 postponed for another generation. That will depend on the 
 issue of the contest now raging between North and South, a 
 contest which waxes in its dimensions and force and bitterness 
 every day, so that its results cannot be predicted. But con- 
 stitutions and laws are intended not for the present hour only 
 and for the generation that is passing away, and his ken is 
 limited who cannot include within their scope the interests 
 and happiness of a distant posterity. 
 
 It is very true that the lakes, rivers, coasts, mountain 
 
 11
 
 162 THE TRIAL OF THE CONSTITUTION. 
 
 ranges and the general structure of our country, facilitating 
 intercourse, all indicate the advantages and proffer the ph_ysi- 
 cal means of union. It is true also that the common origin, 
 language, literature, laws and traditions of the yet dominant 
 race jDoint in the same direction. Nevertheless, the causes 
 already mentioned, the vast extent of our territory, the 
 enormous forces of numbers, wealth and intelligence that are 
 growing up in the several parts, the influences acting upon 
 those parts to assimilate and group them into distinct sections, 
 the diversities of race which are beginning to play so impor- 
 tant a part in our politics and the extreme diSiculty of govern- 
 ing such an empire by democratic institutions, all warn us 
 to expect the fate of continental Europe. To be forewarned 
 ought to be, to be prepared, and the question for wise men is, 
 not how to resist the inevitable, but how to meet it and how 
 to postpone and mitigate its evils. 
 
 There are two evils to be avoided in dealing with the (ques- 
 tion of the Union. One is an unjust and unreasonable effort 
 to coerce a State or States, so as to produce a civil war, and 
 another is, the sudden rupture of the legal tie binding all, 
 the consequence of which would be, immediate combinations 
 according to geographical and other affinities, not likely to be 
 effected peacefully and leading directly to the misfortune 
 most to be dreaded, — the division of the countr}^ into many 
 independent nations. 
 
 How are these evils to be avoided ? Surely by slow dis- 
 integration. By resisting unjust demands for separation and 
 granting just ones. By maintaining the whole of our empire 
 whilst we can and ought, and by giving up parts of it only 
 when we must or should. Justice satisfies all men, and by 
 dealing justly and more than justly, kindly and generously, 
 with our departing brethren, we might form with them an- 
 other union of friendship and alliance, and thus avoid or 
 diminish the risks of war. We can afford to lose the States 
 now in rebellion and yet remain a great and powerful nation, 
 strong enough to defy them and their foreign allies should 
 they have any. Freed from the disturbing influence of the 
 negro race, a Northern Confederacy, still the United States,
 
 UNION. 163 
 
 under the old Constitution and the old flag, if wisely governed, 
 might be expected to endure for many years. 
 
 Under the influence of favoring causes, the adventurous 
 genius of the Saxon race has improvised a powerful com- 
 munity on the shores of the Pacific. It has grown with un- 
 exampled rapidity. It has every element of prosperity. A 
 healthful and agreeable climate, a bountiful soil, gold and 
 silver, mountains, rivers, and a sea opening a highway to the 
 riches of the East, furnish to this favored land ample resources 
 for agriculture, manufactures and commerce. It belongs to a 
 people Avho well know how to develop its resources. They can 
 supply themselves with every comfort and luxury demanded by 
 civilization and refinement. They have the American Constitu- 
 tion, the common law, the language and literature of England, 
 and they have the Anglo-Saxon love of self-rule, of power 
 and supremacy. They are separated by mountains and deserts 
 and by the ocean from the rest of the Union and from the 
 world. The time must come when they will say, " We are 
 strong enough to stand alone, to be ourselves a nation. 
 Washington is distant. Why should a Government seated 
 there rule us, when we might have one here at home, more 
 under our own influence, better acquainted with our aff"airs ? 
 We do not need protection. We can protect ourselves. We 
 need nothing that the United States can give us. We can 
 supply all our wants by our industry, or by our gold we can 
 procure the productions of every climate. Why should New 
 York control our interests ? Why should the Mississippi 
 Valley help to govern us ? Let us go to Washington and tell 
 this to our brethren. Let us ask permission to withdraw in 
 peace and friendship from the LTnion." 
 
 Could such a request be answered by ships of war and the 
 roar of rifled cannon ? Would not justice and good policy 
 alike require that it be granted without hesitation, and that it 
 be followed by a treaty of perpetual alliance and good feeling? 
 That done, a Union would still remain. Supposing the event 
 delayed for even so short a period as twenty years ; the United 
 States, under the old Constitution and the old flag, would still 
 be a great and powerful nation. And the process might go on
 
 164 THE TRIAL OF THE CONSTITUTION. 
 
 from time to time, with such intervals as wisdom and justice 
 could secure, and thus be spread over many years, during 
 which the dreaded consequences of disunion might be pre- 
 vented and the fate of Continental Europe avoided. 
 
 It is obvious that if the central Government has authority 
 either to maintain the union of all the States or to permit the 
 separation of any, as justice or expediency may demand, there 
 can be no such thing as the constitutional right of secession 
 in a State. The reasoning Avhich proves the power of the Go- 
 vernment to preserve the Union disproves the right of a State 
 to break it, — an idea wholly inconsistent with the existence of 
 a National Government. 
 
 Both the Constitution itself and its history show that it cre- 
 ated and was intended to create, at the same time a confede- 
 racy and a nation, and that its federal is necessarily subordi- 
 nate to its national character. Granting, however, all the 
 importance claimed for the federal attributes of the Govern- 
 ment, if it was a compact, it was made to form a Union, — a 
 "more perfect Union," as itself declares, than existed under 
 the old Confederacy. Had it been intended that one of the 
 States created by this compact should have power to defeat its 
 object, a right so important would have been expressly stated, 
 and some formal mode provided for its execution. 
 
 Those who advocate the right of secession are what are 
 called "strict constructionists," and deny to the Government 
 all powers not expressly enumerated in the Constitution. They 
 nevertheless do not hesitate to resort to inference and implica- 
 tion to serve their purpose. The only part of the Constitu- 
 tion from which the right of secession can possibly, by any 
 ingenuity, be implied, is the tenth article of the Amendments, 
 which declares that "the powers not delegated to the United 
 States by the Constitution, nor prohibited by it to the States, 
 are reserved to the States respectively, or to the people." 
 Among tlie powers thus reserved to the States, these rea- 
 soners contend, is that of seceding at pleasure from the 
 Union. It would be a violent presumption that gave to 
 these words a meaning destructive to the primary object of 
 the Constitution and the Government it was intended to
 
 UNION. 165 
 
 create. A more just rule of construction would be to sacri- 
 fice the article to that object and that Government. But no 
 such sacrifice is necessary. The powers thus reserved to the 
 States are their powers of local self-government by their own 
 executive officers, legislative assemblies, and courts, — which 
 powers are neither delegated to the United States nor prohi- 
 bited to the States. The language of the article being thus 
 fully satisfied b}^ a meaning consistent with the whole history, 
 tenor, and spirit of the Constitution, it is illogical to give it an 
 interpretation inconsistent with all. 
 
 Nevertheless, this doctrine of the right of secession, however 
 absurd and incompatible with the general principles on Avhich 
 every Government must be founded, has been the disease of 
 ours from an early period of its history, and now threatens its 
 life. Its fit companions are the right of nullification ; that is 
 to say, the riglit of a State to veto an Act of Congress, and 
 the right of a State or of the Supreme Court to declare a mea- 
 sure of the Government nidi and void because it violates the 
 Constitution, and to release the people from the obligation of 
 obedience to the laws. Such are the wild theories of jurispru- 
 dence by which rebellion has heretofore been prompted, and by 
 which it is now fed, supported, and advocated. They are as 
 inconsistent with truth and reason as they are with the prin- 
 ciples of our Constitution, or of any possible Constitution. 
 They are consistent only with anarchy and misrule ; and the 
 wonder is, such fallacies prevailing, not that the Union and 
 the Government have been attacked by rebellion so soon, but 
 that they have escaped it so long. 
 
 It rarely happens, however, that any opinions long held by 
 large numbers of men are without some foundation of truth. 
 The claim of a lesi;al ri^-ht of secession arises from the desire 
 for self-government which is instinctive in our people. It 
 caused our Independence, it is the animating principle of our 
 Constitution, it is the efficient guardian of the federal charac- 
 ter of our system. The right of the people to alter or abolish 
 their form of Government at pleasure cannot be denied by any 
 one of the Saxon race. 
 
 But it is a moral ris-ht, and cannot be made a legal one
 
 166 THE TRIAL OF THE CONSTITUTION. 
 
 without destroying the necessary authority of Government. 
 It is a right, the exercise of which may be wise or foolish, just 
 or unjust, conservative or destructive, according to the facts 
 and circumstances of the particular case. It may be rightful 
 resistance to oppression, or wicked and treasonable rebellion 
 against wise laws and a beneficent Government, instigated by 
 designing leaders, and supported by the folly and passion of 
 a deluded people. According to its character, therefore, it 
 ought to be treated. Power to judge it must be lodged some- 
 where, and where can it be lodged ? Not, surely, in the dis- 
 contented State, for that would make it a judge of its own 
 cause, and subject the rights and interests of all the other 
 States to what might be the crime or folly of one. What tribu- 
 nal so fit as the central Government, which represents the whole, 
 and how can the Constitution of that Government confer upon 
 a part the legal right at any moment to sacrifice the whole? 
 
 A constitutional right of secession is inconsistent with the 
 necessary authority of the central Government, and with its 
 power to preserve the Union. Nevertheless, the principle 
 upon which it is founded is a true principle, and the moral 
 wants out of which it has grown must be satisfied. They can be 
 satisfied, consistently with the preservation of the Union and 
 the just supremacy of its central authority, only by ascribing 
 to that authority power to grant a request for. secession 
 which in justice ought to be granted, and power to refuse it 
 when it ought to be refused. 
 
 In the year 1713, seven years after the Act of Union be- 
 tween England and Scotland, the Scottish people became dis- 
 satisfied with a tax imposed by Parliament. They declared 
 that it was injurious to them, and bore upon them unequally 
 as compared with the people of England. Discontent rose 
 to such a hein;ht that the Scotch clamored for a dissolution 
 of the Union. They, however, did not call a convention' 
 to pass an ordinance of secession, nor did they determine to 
 resist by force the collection of the tax. During the recess of 
 Parliament, the Scotch members of the Houses met and de- 
 liberated on the proper plan to pursue. They sent a com- 
 mittee to lay their grievances before the Queen. When Par-
 
 UNION. 167 
 
 liament assembled, one of these members moved in the House 
 of Lords, that leave be given to bring in a bill to dissolve the 
 Union. The bill was discussed. Scotland had a licarini!; and 
 a vote, and so also had England, who was a party with 
 weighty interests involved in the dispute. Had the question 
 been debated only in Scotland, England Avould have had no 
 hearing. Had Scotland possessed the right of secession, the 
 Union, under the excitement of the moment, would have been 
 destroyed. Fortunately it was saved, and remains to this day 
 stronger than ever. It was saved wholly because Parliament, 
 representing both Scotland and England, had supreme power 
 either to maintain or dissolve it. No appeal would have been 
 made to Parliament but for this power. The angry passions 
 of the Scotch would have decided the question, and would 
 have decided it to their ruin. 
 
 As it is manifestly just that a question which, like that of 
 maintaining or dissolving the Union, involves so deeply the in- 
 terests and destiny of all the States, should be discussed by 
 the representatives of all, and decided by a majority of them, 
 so it is the surest way of preserving the Union. Debate 
 bringfs out the truth, reveals dishonest motives and ambitious 
 intrigues, discloses the interests at stake, the reality of griev- 
 ances complained of and their remedy, if they have a remedy. 
 Above all, the forms of legislative proceedings interpose de- 
 lay, during which angry passions may stibside, moderate men 
 come forward with moderate measures, the sober second 
 thought of excited parties have time to act, and the public 
 sentiment of the nation, roused by a crisis, to make itself 
 heard with commanding influence. A bill brought into Con- 
 gress to authorize the withdrawal of a State or of several 
 States, would not be decided in a day. It wotild excite the 
 attention of the whole country. Parties would divide upon it. 
 The daily press in multitudinous sheets would present the 
 subject in all its bearings to the people. The people would 
 express their opinions in toAvn meetings and public assemblies 
 in every State. The States in their corporate capacity would 
 make themselves heard through messages and proclamations of 
 their Governors and resolutions of their Legislatures. In a
 
 168 THE TRIAL OF THE CONSTITUTION. 
 
 word, the whole battery of public opinion, with all its formi- 
 dable apparatus, would be brought to bear upon the subject. 
 
 After all this deliberation and the action of these conserva- 
 tive influences, the bill might be postponed to await the result 
 of further reflection and of conciliatory measures among the 
 people of the State that introduced it, or it might be passed 
 with just conditions imposed on the seceding States, or it 
 might be rejected as unreasonable and revolutionary. In 
 either case the question would be settled with the forethought 
 and order and prudent regard to consequences, worthy an en- 
 lightened people. Should secession be permitted, it might be 
 accompanied by such terms and treaties as would delay or 
 mitigate the evils of disunion. Should the demand be refused 
 for good reasons, made apparent by the debate, and explained 
 as they probably would be by the arguments and eloquence of 
 eminent men, and supported, too, — as they probably would 
 be, — by the public sentiment of the nation, these v.'ould have 
 their influence in reconciling the people of the States seeking 
 separation to the Government of the Union. The persuasive 
 force of these reasons would be greatly enhanced by the ad- 
 mitted right of the Government to dispose of the question, 
 and to coerce obedience. 
 
 It is not likely, indeed it may be considered impossible, 
 that secession will ever be attempted by a single State. Its 
 position would be too weak and contemptible, whether it failed 
 or succeeded. The insanity of even South Carolina did not 
 extend so far as that. The Anglo-Saxon people, if they love 
 local self-government, love power too, and their taste is to 
 found great nations, not petty principalities. Scotland will 
 not secede from the British Empire, or the English in Ireland, 
 or Wales, but we did, and Canada will, and so, in the fulness 
 of time, may Australia. In like manner there is no danger 
 that Massachusetts or Pennsylvania, or Ohio or California, 
 will ever desire to withdraw alone from the Union. But it 
 may happen hereafter that New England or the Middle States, 
 or the Northwest or the Pacific States, shall think themselves 
 strong enough to make a great nation. It is to meet such 
 cases that the power of the Government to permit secession
 
 UNION. 169 
 
 on just and reasonable terms is most important. With this 
 power established, secret plots and conspiracies would be un- 
 necessary. To desire secession, openly to propose it, to en- 
 deavor to secure the co-operation of like-minded States would 
 not be treason or sedition, because the object of all these ef- 
 forts would be, not to resist or overthrow the Government, but 
 with its consent and by its authority to form another nation. 
 The right claimed would be under the law, and not over it, 
 the claim itself would impliedly recognize the privilege of re- 
 fusal and recognize also the existence of other claims, those 
 of the other States, as worthy consideration and respect. 
 
 A demand so made by a powerful section would be entitled 
 to a respectful hearing, and would receive it. Should it appear 
 that separation was the wish of the people, and that wish the 
 conclusion of their sober judgment, not the rash and hasty 
 plunge of popular passion, not the result of corruption or agi- 
 tation, or intimidation, or of the intrigues and arts of dema- 
 gogues, it is safe to say, that it would not be refused. It 
 would not be refused for two reasons. First, because a claim 
 so made and so supported would be met by the hearty sym- 
 pathy of the American people. They could not reject it with- 
 out violating their dominant impulses and convictions, denying 
 the principles on which their Government is founded, and 
 contradicting their annals from Alfred to Washington. All 
 these proclaim the right of man to self-government, and the 
 determination of the Saxon race to maintain self-government. 
 But they proclaim also a hatred of sedition, privy conspiracy 
 and treason, a love of order, law and legitimate authority, and 
 an equally firm determination to acquire national poAver and 
 rank, and to maintain a National Government able to support 
 them. All these sentiments would be satisfied by yielding to 
 the intelligent, well-ascertained desire of a great section for 
 independence, provided such a measure be respectfully ui'ged, 
 Avith due legal forms and fair consideration for the interests of 
 other parties concerned. But all the dominant feelings of the 
 people, and the noblest 'traditions of their history, would be 
 outraged by an ex parte act of separation, executed by a State 
 or a company of States, Avithout notice, Avithout consultation
 
 170 THE TRIAL or THE CONSTITUTION. 
 
 with the others, or deference to their wishes and interests, and 
 in defiance of the national authority. 
 
 Another reason Avhy a claim for independence founded in 
 justice, supported by the people of a large section, and respect- 
 fully presented, would be granted is, that it could not be re- 
 fused without a civil war. A seditious insurrection in a State, or 
 in any number of States, to resist the authority of the Govern- 
 ment, or even to overthrow it, unless supported by the majority 
 of the people, does not rise to the dignity and importance of 
 civil war. Such was the Whisky Insurrection in Pennsylvania, 
 and some others of a similar character in our history. But 
 when the whole people of a large and powerful section take up 
 arms to vindicate rights, real or imaginary, or to resist wrongs, 
 real or imaginary, that is civil war, and it is a calamity not to 
 be lightly encountered, even if the insurgents are unreasonable 
 in their demands. It must be encountered, nevertheless, by 
 the Government when necessary to defend itself, its honor and 
 dignity, its territory and the authority of the laws. A just 
 war for these purposes would strengthen the Union, even 
 though a portion of it might be lost, consolidate its power, and 
 elevate its character at home and abroad. 
 
 But a demand for separation may be just and reasonable. 
 If so, to opj)Ose it would be unjust and unreasonable, however 
 much material interests might apparently require opposition. 
 What good result could it produce ? Should the Government 
 be defeated, it would, after a vain sacrifice of life and property, 
 lose not territory and power only, but character also, and the 
 mortification of defeat on one side and the exultation of victory 
 on the other, would be the cause of future wars between the 
 embittered sections. On the other hand, if the Government 
 succeeded in reducing resisting States to submission, and im- 
 posing upon them the yoke of a hated authority, would a 
 compelled Union, cemented by blood, be the Union of the Con- 
 stitution, or a secure foundation for national glory and great- 
 ness ? Could it be followed by a real peace, and how long 
 would it endure ? Would not the National Legislature be a 
 scene of discord, if members from con(|ucred States formed a 
 part of it ? Would not these States find multitudes of sym-
 
 UNION. 171 
 
 patliizers and friends in the others, and immediately endeavor 
 to make alliances with them and with foreign nations, in order 
 to renew the contest ? And how long would it he hefore the 
 flames of war were again kindled, to hurn with wider scope and 
 hotter fury ? The American people desire no such Union. If 
 they cannot have one founded on consent and mutual <rood 
 will and common interests in a common destiny, they would 
 rather give up their cherished hope of a great Republic, and 
 accept the destiny of Europe. 
 
 For these reasons it may be confidently assumed, that the 
 people would not refuse a just demand for separation, properly 
 presented. But there must be a tribunal to decide upon the 
 merits of such a case, and to settle the terms of separation. 
 This tribunal is the General Government, representing all the 
 States and the whole people, for there can be no other. It 
 alone, by refusing separation where it ought to be refused, or 
 granting it where it ought to be granted, could save still a 
 Union and avert the calamities of war. 
 
 Assuming that the majority of the States and of the people 
 represented in the central Government have the constitutional 
 power to preserve the Union, or to consent to the separation, 
 from it of one or more of the States, does it not follow that 
 the Government has also a right to decree a separation from 
 one or more of the States against their consent ? Must not 
 this right exist in order that the Government may be adequate 
 to the exigencies of the Union ? Must not power as extensive 
 be vested in every government, to enable it to perform the 
 duty of preserving the nation, and of promoting its happi- 
 ness and perfection ? The rights of a nation spring from its 
 obligations. "It has a right," says Vattel, "to everything, 
 without which it cannot obtain the perfection of the members 
 and of the States, or prevent or repel whatever is contrary to 
 that double perfection."* This principle is not inconsistent 
 with another he had just laid down. " If a nation is obliged 
 to preserve itself, it is not less obliged to preserve all its mem- 
 bers. The nation owes this to itself, since the loss of one of 
 
 * Vattel's Law of Nations, B. 1, ch. 2, § 23.
 
 172 THE TRIAL OF THE CONSTITUTION. 
 
 its members weakens it, and is injurious to its own preservation. 
 It owes this also to the members in particular, in consequence 
 of the very act of association ; for those who compose a nation 
 are united for their defence and common advantage ; and none 
 can justly be deprived of this Union, and of the advantages 
 which flow from it, while he on his side fulfils the conditions. 
 The body of a nation cannot, therefore, abandon a province, a 
 town, or even a particular person, Avho has done his ijart, un- 
 less obliged to it from necessity, or unless it is made necessary 
 by the strongest reasons founded on the public safety."* 
 
 These are universal truths. They are thus a part of the 
 Law of ITations. Let us apply them to our case. It is ob- 
 vious that a State may refuse to fulfil or may be unable to 
 fulfil the conditions of the L^nion, or to do its part in it. The 
 preservation of the majority or of -the " body of the ITation," 
 its progress in civilization and power, in perfection and happi- 
 ness, — in all good, worthy, and noble things, — may, therefore, 
 demand separation from an incompetent, a vicious, a diseased, 
 a decaying, or a dead part. The majority must decide such 
 questions. It is the universal rule of all States that the ma- 
 jority must govern, for " otherwise it would be impossible for 
 the society ever to take any resolution. "f The rule does not 
 always work well, for sometimes the opinion of the majority is 
 by no means the wisest. ^Nevertheless, the rule is necessary; 
 for when the assent of more than a majority is required, power 
 is thereby transferred to a small minority, whilst Polish una- 
 nimity is destructive to all the ends of Government, as the 
 fate of Poland proves. t 
 
 A nation has a right to everything essential to its safety 
 and well-beino;. This nation has a right to a Union consist- 
 ent with its security, liberty, and progress in civilization. It 
 has exercised power over the LTnion from the beginning. The 
 Constitution provided that its ratification by nine States should 
 
 * Vattel's Law of Nations, B. 1, ch. 2, § 17. 
 t Vattel's Law of Nations, B. 1, ch. 2, I ?>?>. 
 
 X On the injurious consequences of roquirinj^ a vote of more than a ma- 
 jority for deciding a question, see Federalist, No. 22.
 
 UNION. 173 
 
 be sufficient for its establishment between tliose States. The 
 Convention had power to fix upon a smaller or larger number, 
 and to exclude forever the two States which at first refused 
 their assent. The Convention might have excluded the States 
 that refused to give up slavery or the slave-trade, and fortu- 
 nate indeed would it have been had thej done so. The Consti- 
 tution declares that new States may be admitted into the Union 
 by Congress. All this shows that a majority of the States did 
 exercise control over the size of the Union, and may, by ex- 
 press legal provision, limit the increase of it. There is no 
 power expressly given to preserve the Union, or to dissolve it 
 by mutual consent. These powers are implied from the gene- 
 ral language of the Constitution, and from the universal prin- 
 ciples that lie at the foundation of all Governments. 
 
 The Constitution intended to- grant to the Government au- 
 thority "adequate to the exigencies of the Union." We have 
 seen that those exigencies may require either the preservation 
 of the Avhole Union as it exists at any particular time, or the 
 separation of some of the States by consent of the majority. 
 The separation of one or more without or against their own 
 consent, may become equally necessary. The Union ought to 
 be such as the majority of the people choose to make it. It 
 will be such in spite of all narrow constructions of the Consti- 
 tution. This was at its origin the law of its being, and will 
 be so hereafter, unless it shall close its life amid the convul- 
 sions of anarchy, because that law is resisted. The only right 
 of secession consistent with peace, safety, and national exist- 
 ence, is in the majority. 
 
 That a State may be expelled from the Union will be to 
 many a startling and unwelcome proposition. Yet the right 
 of expulsion must belong to all associations, whether for plea- 
 sure, for business, or for government, because it is essential 
 to their comfort, their character, their safety, and the attain- 
 ment of their objects. No view of the stormy future that lies 
 before us is more painful or more certain than the truth, that 
 some States and sections of this country may become unfit 
 companions for the others, unfit for equality with them, and
 
 174 THE TRIAL OF THE CONSTITUTION. 
 
 unfit to influence oi* control tlicir interests by a share in the 
 central power. 
 
 Let us take, by way of ilhistration, the Territory of Utah, — 
 not yet a State, indeed, but likely soon to apply for admission 
 into the Union. Considering that this is the nineteenth cen- 
 tury and America, Mormonism is a remarkable phenomenon. 
 That a despotic theocracy should grow up and flourish under 
 the sheltering wings of the great Republic is scarcely more 
 surprising than that polygamy, an Oriental institution, should 
 have been successfully transferred to our extreme West. The 
 one contradicts every principle of our Government, the other 
 takes away a chief pillar from our fabric of Christian morality. 
 Both are inconsistent with the manners, the convictions, the 
 culture of our people, and their system of political and social 
 civilization. , 
 
 . Mormonism numbers from 250,000 to 300,000 followers. 
 There are 80,000 in Utah, its chief seat, and the residence of 
 its Prince and Prophet. Strange to say, he is a New England 
 man by birth and education, as are many of his subjects. He 
 unites the character of priest and despot, and displays ability 
 as both. His emissaries are spread abroad over America and 
 Europe, engaged, like the Jesuits, in the work of propagand- 
 ism. The number of his converts increases, and from the great 
 tide of "Western emigration, annual rivulets diverge into Utah. 
 The Saints, notwithstanding their gross superstitions and their 
 oriental customs, display the Saxon aptitude for material pro- 
 gress and social combination. They maintain order and go- 
 vernment, they excel in the mechanic arts, they build towns 
 and cities, and have created a flourishing agriculture. They 
 have the boldness, the energy, the arts, the knowledge, the 
 mind of the Northern races. Add to these qualities the elec- 
 tric power of fanaticism, the concentration of despotism, and 
 they are not to be despised. They are capable of strong and 
 persistent efforts, whether in peace or war. Some believe that 
 they are destined to multiply and to become a great people ; 
 others that contact Avith our civilization Avill weaken and de- 
 stroy their faitli and reform their habits, and that they will 
 be merged into our population as it advances westward.
 
 UNION. 175 
 
 However that may be hereafter, Mormonism is now a fact 
 of practical importance. Shall Utah be admitted as a State ? 
 Shall it have two votes in the Senate ? Shall pol jgamists, and 
 the subjects of Brigham Yomig, and the sectarians of a mon- 
 strous superstition, help to make a President for us, and share 
 in tlio authority that rules the interests and destiny of this 
 rich, educated, and civilized nation ? Have the American 
 people no power to avoid the contamination of such a fellow- 
 ship, or the degradation of such a control ? Surely it is one 
 of the "exigencies of the Union" to refuse companionship with 
 pagans and polygamists, Avith the deluded followers of an im- 
 postor, and the blind worshippers of an absurd faith. The 
 animating principle of our Constitution is liberty, and they are 
 the abject slaves of a despot. We have built our house on the 
 rock of Christianity, and they are the idolaters of falsehood. 
 They cannot participate either in our religion, our liberty, or 
 our civilization, and are unable to share our destiny or our 
 hopes. Yet the impudent claim of Utah to be received into 
 the fellowship of the Union has many advocates. Strict con- 
 structionists interpret the word '■''may'' used in the Constitu- 
 tion to mean '"' shall:" but reason and common sense read it 
 as it was wa-itten, and in accordance Avith the eternal laws of 
 man's nature. 
 
 The country, however, presents other cases more difficult 
 than that of Utah. Mormonism, when no longer upheld by 
 the talents of Brigham Young, will probably decline, and gra- 
 dually disappear. It is nourished by no perennial fountains 
 springing from the qualities of race, the traditions and cus- 
 toms of the past, or the interests of the present. All these 
 influences oppose it, and it is scarcely possible that it should 
 resist the force of example, the light of civilization, and the 
 current of opinion, when these reach the distant region where 
 it is seated. We should let it alone for the present, and Avait 
 the indications of the future, satisfied with this, — that the union 
 of Mormonism with liberty and Christianity is unlawful, un- 
 holy, and impossible. 
 
 So also is a permanent union impossible betAveen civiliza- 
 tion and barbarism, betAvecn a groAving and advancing people
 
 17G THE TRIAL OF THE CONSTITUTION. 
 
 and one decaying, between vigorous healtli and chronic dis- 
 ease, between knowledge ever seeking new light and ignorance 
 preferring darkness to light, between strength alwa^'S aspiring 
 to new achievement and Aveakness declining to lower and 
 lower depths of contented degradation. Civilization and pro- 
 gress depend on the qualities of race. Some races are in- 
 capable of advancing beyond the savage state ; such are the 
 North American Indians, the inhabitants of the tropical 
 islands, the aborigines of Australia. Others reach a certain 
 point of material, utilitarian improvement and there stop, as 
 the Chinese, the Japanese, the Mexicans and Peruvians. 
 Others have a limited capacity for amelioration whilst guided 
 and sustained by the superior mind of the white race, like the 
 negro. Civilization in its true sense, which includes moral, in- 
 tellectual and material advancement, literature, the useful and 
 the fine arts, free government and Christianity, belongs to the 
 white race, and to its branches in very different proportions. 
 
 Of these the Teutonic is now generally admitted to be the 
 highest type of man. It alone is capable of maintaining 
 liberty combined with order, of the mechanical inventions and 
 applications which control the forces of nature and supply the 
 means of comfort and refinement, of constant aspirations and 
 constant efforts for a better and higher life. The North, as 
 it was the birthplace, is also the congenial home of this 
 highly endowed race. It does not flourish in the South. 
 Whether, as some think, because of the climate, or according 
 to others, because of contact and intercourse with the dark 
 races of the South, when transplanted there it dwindles and 
 decays, loses its energy, its aspirations, its industry, its 
 powers of progress and love of freedom. It exhibits a con- 
 stant tendency to sink to the Southern level, to become 
 merged in the Southern races, and can only be sustained 
 above and separate from them by connections with the North 
 and fresh supplies of Northern force and ability. 
 
 Without entering into the discussion of ethnological theo- 
 ries, it may be said that science, history and tlio present 
 aspect of the world show that the laws of nature separate 
 mankind into different races, distinctly marked by per-
 
 UNION. 177 
 
 mancnt characteristics, and that to these races have been 
 allotted different portions of the earth. The laws of nature 
 execute themselves, and this ranking of races and division 
 of territory is guarded by inexorable penalties. Hybrids are 
 not prolific and are deficient in the strong qualities of either 
 parent source. The food and climate which nourish one race 
 are injurious to another. The wants of each are satisfied, 
 its qualities developed, its energies active only in its appropri- 
 ate sphere. The contact of any tAvo is injurious to botli. The 
 result is subjugation of one or the other, amalgamation and 
 degradation. This is more especially the case Avith the four 
 great and more strongly marked divisions, the white, the black, 
 the yelloAv and the copper-colored. Their natures are dis- 
 similar and have been so in all that we know of the past. We 
 may presume that they will be so, in all that Ave can knoAv or 
 can provide for of the future. 
 
 Let us leaA'C theories or rather apply them to practical 
 interests. It is evident that we have not merely a geographi- 
 cal North and South. We have a Southern climate and aa'c 
 haA-e the black race. We have the sun and soil suited to that 
 race, and therefore it is here. It groAvs and thrives in the 
 South as it does in Africa. It was taken to the North, but did 
 not flourish there and hastened constantly southward, Avhere it 
 is concentrating its dusky millions. The Saxon grows and 
 thrives in the North. He too has gone to the South. Does 
 he flourish there ? Does he expand to the* full capacity of his 
 nature ? Does he advance in his appointed path to higher and 
 nobler destinies ? Does he send forth luxuriant branches 
 covered with the blossoms and fruits that he Avas born to pro- 
 duce, science, arts, liberty, Avealth and refinement ? Gloomy 
 statistics ansAver these questions. When the thirteen original 
 States sat in convention and made the Constitution, there was 
 no great disparity in the condition of North and South. Look 
 at them noAv. They are far asunder. Between them is the 
 ever Avidening gulf that separates advancement from stagnation 
 and decay. Where are the commerce, the manufactures, the 
 improved and productive agriculture of the country ? Where 
 the great cities, the flourishing toAvns filled Avith Avealth and 
 
 12
 
 178 THE TRIAL OF THE CONSTITUTION. 
 
 luxury and adorned with taste ? Where are the ships and 
 mills and machinery, the fertile and embellished farms ? 
 "Where the colleges and schools, the galleries of art, the 
 churches and charities ? Where the publishers, printers and the 
 influential press ? Where the authors, the painters and sculp- 
 tors ? These things constitute civilization, and they are all 
 in the J^orth. Why ? The answer is twofold and plain 
 enough. The Saxon cannot- labor in the South, and these 
 things are the products of labor. The negro can labor there, 
 but he cannot make these things. 
 
 Consider the immense significance of these two facts. Is 
 not work of the body and of the mind man's chief blessing and 
 mission in this world. What is it that brings order out of 
 chaos, that makes the earth habitable, that surrounds life with 
 ease, comfort and beauty, that supplies intellectual wants, and 
 cultivated taste, but work ? And is not idleness the parent of 
 every vice ? The white man cannot woik in the South ; that 
 is to say he does not love work. The climate indisposes him 
 to labor, and he will not work whilst he has the negro to work 
 for him. The industry of the South is therefore in the hands 
 of a race incapable of civilization. IIoav much is implied in 
 that ! Industry is rude and coarse. There is no mirid in it, 
 no invention, no intelligent use of the forces of nature and 
 adaptation of means to ends. The countless productions of 
 skilled labor therefore, which constitute material civilization, 
 do not belong to thl> South. They are taken there from lands 
 where industry is mental as well as physical. The South 
 cannot convert its cotton into the beautiful and useful fab- 
 rics that clothe the world, cannot make the machinery to 
 weave it," could not use that machinery, cannot build ships to 
 carry its rude products away. It does for cotton what the 
 natives of Africa do for it, and no more, and for the same 
 reason. The Africans in Africa can only grow it ; the Afri- 
 cans in the South can only grow it. Almost the whole value 
 of the cotton crop was created by the cotton gin, invented 
 by a Northern man. 
 
 The labor of the working race of the South brings with it 
 none of the blessings of labor. It is not only ignorant and
 
 UNION. 179 
 
 rude, but it is not accompanied l)y self-respect and stimulated 
 by hope. The laborer cannot aspire, cannot respect himself, 
 for he is a slave. He is not a citizen or one of the people ; he 
 has no country, no government, no laws. He could not have 
 them if he were free. He never had them in Africa, he will 
 never have them here. He is planted irrevocably in the 
 South, I mean in the extreme South, the Cotton States. 
 Never, therefore, in the South can the word industry mean 
 what it does with us. It can never be associated with ideas 
 of ingenuity and skill, of knowledge and intelligence, of con- 
 stant progress and general comfort, more and more Avidely dif- 
 fused among the people. Take from the North our laboring 
 class and substitute for them the negro, whether free or en- 
 slaved, and how soon our onward career would be checked. 
 What a mass of mind and energy, what lifeblood, Avould be 
 taken from our social system ! What would become of our 
 mills and workshops and well-tilled farms, of our busy villages 
 and rising cities ? These things must exist in the mind of the 
 workman before they can be produced by his hand. 
 
 Not only can there be no respectable laboring class where 
 labor is in the hands of an inferior race and of slaves, and is 
 therefore despised, but there cannot be the large and prosper- 
 ous order which goes by the name of the middle classes ; mas- 
 ter workmen, machinists, builders, farmers, tradesmen, manu- 
 facturers, — educated, active, enterprising and rich ; the men 
 who direct the great business and control the great interests 
 of the country. Diversified industry produces and sustains 
 these. Without commerce and manufactures they cannot 
 exist. Without skilled and intelligent labor they cannot 
 exist. Give them slave labor or negro labor as a support and 
 they would disappear. Take this class from Northern society 
 and its prosperity and power would wither away. 
 
 What, then, are the elements of Southern society? An idle 
 white race, dependent on the labors of the negro, the negro 
 himself, and a third class knoAvn as " poor white trash," 
 rapidly increasing. All white men cannot own land and ne- 
 groes, cannot be planters, merchants, doctors and attorneys 
 at law. There must be large numbers that in some way or
 
 180 THE TRIAL OF THE CONSTITUTION. 
 
 the other live by physical labor. But physical labor is de- 
 spised, and there is not much demand for it. Capital is the 
 employer of labor, and capital in the South owns its labor. 
 The productions of skilful industry are brought to it in the 
 ships that take away its cotton. The demand for ingenuity, 
 for thought in labor, is small. Mere bodily toil is demanded, 
 and that is supplied by the negro. If the white man works 
 therefore at all, he must work like the negro, with his body 
 only ; he must be contented to live as the negro lives, he must 
 be the competitor of the negro, and, so far as his nature can, 
 sink to his level. And such has been his fate. The words 
 "poor white trash" are a term of contempt, even in the mouths 
 of slaves. 
 
 And the ruling class, the planter, the professional man, the 
 merchant of the towns, supported by cotton, what has been 
 their fate ? Do they flourish ? Do they rise higher and 
 higher in knoAvledge and refinement ? Are they enterprising, 
 adventurous, energetic ? Are they creating a great empire at 
 the South, durable and strong, advancing in science and wealth 
 and embellished by art ? Are their cities and towns growing 
 in size and beauty ? Do churches, colleges and schools mul- 
 tiply ? Who are their philosophers, poets, painters, and men 
 of letters ? Is not even their breed of statesmen extinct ? 
 At every generation they lose some of the high qualities of 
 their blood. Born to command an inferior race, with the 
 persons of men and women subject to their absolute power, 
 they are educated to arrogance, pride, sensuality and cruelty. 
 Their wealth is exotic. It is not the result of their own 
 thought or skill, but of the rude labor of those who are not 
 ranked among their people, and of foreign skill. The whole 
 value of their chief production is given to it by other hands. 
 Destroy their monopoly of cotton and they would be poor. 
 They are becoming incapable of free government. Free 
 thought, free speech and a free press, are inconsistent with 
 slavery. To govern tlic negro they must govern also the non- 
 slaveholder, and oligarcliy supported by military power must 
 ere long supplant rejmblicanism. 
 
 It is impossible to resist natural laws. The Saxon race
 
 UNION. 181 
 
 does not belong to the Soutli. Liberty, labor, progress, are 
 essential to his healthy life and growth. He is really an alien 
 in the South, which to the negro is a congenial home. The 
 climate and the negro, therefore, unite to destroy the white 
 race. They enfeeble and degrade it. Such has ever been its 
 fate, sooner or later, where it has attempted to colonize the 
 South. The dark races, assisted by the sun, are more than a 
 match for Northern energy. 
 
 Now what is the practical bearing of these truths on our 
 affairs ? We have four millions of negroes in the South. 
 They are there forever. They cannot be sent away. It is a 
 congenial home for them, where they thrive and grow and 
 where they have founded a new Africa. They increase faster 
 than the white race. Soon they will be eight millions, ere 
 long sixteen millions. The population of mixed blood also in- 
 creases. A wide-spread degradation of race threatens the 
 South, a mingling of races and colors, like that which has 
 ruined all hope of civilization in South America, Nothing 
 sustains the Saxon race in the South now but the high price 
 of Southern productions, a support that new fields of supply 
 or the discovery of another vegetable fibre may at any time 
 destroy. 
 
 Already the climate and the negro have created a vast dis- 
 parity in all the elements of civilization between the North 
 and the South. Already they have in the South converted a 
 large portion — a majority — of the Saxon race into "poor white 
 trash," and are rapidly dragging the others into a slough of 
 sensuality, ignorance and sloth. Already they have destroyed 
 free government, and have checked the growth of industry, 
 science and the arts. The North will not pause in its career. 
 As Africa increases its empire in the South, the difference be- 
 tween the two sections must become more clearly marked. 
 At length a point must be reached when union on equal terms 
 will be impossible. Africa means barbarism, and there can 
 be no union between civilization and barbarism. A mixture 
 of races, composed of negroes, mulattoes, quadroons, degene- 
 rate Saxons, Spaniards, French and Mexicans, means degra- 
 dation, decay and death, — the extinction of national life, of
 
 182 THE TRIAL OF THE CONSTITUTION. 
 
 all elements of strength and progress. Union and equality 
 ■with such would be for the Northern people impossible as they 
 ■would be -with the people of Mexico or A^enezuela. 
 
 A degenerate race cannot be permitted to govern the North 
 and to decide for it the great questions of national policy. 
 There can be no equality bct'ween parties unequal by nature. 
 There can be no fellowship between persons different by na- 
 ture. There can be no j^int ownership that would destroy 
 the thing owned. There can be no government by an inferior 
 Over a superior. Barbarism cannot share the destiny of civi- 
 lization. Vigorous and healthy life will not be bound to disease 
 and decay. 
 
 As the negro and the climate assert their power over the 
 ■white race in the South, its hold on the North must gradually 
 be loosened, even should the Union be restored after the pre- 
 sent war. A time must come, therefore, Avhen one of two 
 things will happen : either the Southern States, that is, the 
 Cotton States, will be excluded from a share in the central 
 power and be governed as subject provinces, or they will be 
 excluded from the Union. 
 
 Justice will demand this, because they will not be able to 
 perform their part in the Union. The security, the prosper- 
 ity, the freedom of the majority will demand it, because these 
 States, if the causes already mentioned continue to operate, 
 by sharing in the central authority, would corru})t and de- 
 stroy it. 
 
 Clearly, therefore, such a change may be required, and 
 unless the Government has tlie power to make it, it cannot be 
 " adequate to the exigencies of the Union." 
 
 I have thus endeavored to show that history, English analo- 
 gies, the fundamental principles of all politics, and the lan- 
 guage of the Constitution, prove that the central Government, 
 representing a majority of the States and the people, has legal 
 power over the Union, to preserve it, and to limit, extend or 
 diminish its size as justice and necessity may demand. If the
 
 UNION. 183 
 
 right to this power be doubtful, the present crisis proves that 
 it is necessary, and that only by the prudent, just and deter- 
 mined exercise of the whole of it, can a Union worth having 
 be saved and anarchy averted. The Government must take 
 the power and must be sustained by the people or we perish. 
 It belongs to the Government by eternal laws which cannot 
 be violated wnth impunity. A nation has a right to Avhatever 
 is necessary for its preservation and progress, and we, the 
 people of 1862, have a right to such a Union as is consistent 
 with our safety, civilization and happiness, whatever our an- 
 cestors of 1787 may have thought or said. 
 
 When they set about the task of saving the Union, they 
 found it in imminent danger because the States had too much 
 power, and the central Government too little, or rather none 
 at all. Accordingly they created a National Government 
 with authority to make and execute supreme laws, to impose 
 taxes, to maintain an army and navy, to declare war, to make 
 treaties, to perform, in short, all the usual functions of a Go- 
 vernment acting upon persons and property. At the same 
 time they prohibited to the States every power deemed incon- 
 sistent with such a Government. They did not declare ex- 
 pressly that no State should have the right to overturn that 
 Government, or to destroy the Union it was intended to pre- 
 serve. A declaration of this sort would seem superfluous, 
 because such a privilege would be inconsistent with the very 
 purpose for which the Constitution was made. To say that 
 the object of the Constitution was to create " a more perfect 
 Union" and then that the Government had power to preserve 
 it, to declare that Congress had authority to make laws and 
 then that these laws must be obeyed, was unnecessary, and 
 would not have accorded w^ith the comprehensive brevity ap- 
 propriate to such a document. 
 
 Nevertheless it is unfortunate that a clause to this effect 
 w^as not introduced, for the perverse ingenuity of faction has 
 discovered that the Government has no power to preserve 
 itself and the Union, because none was expressly granted. 
 The gross absurdity of such a doctrine has not prevented its 
 becoming the basis of a powerful party, that claims for any
 
 184 THE TRIAL OF THE C ONST IT U TION. 
 
 State, the right, at its own will and pleasure, to set the Govern- 
 ment at defiance, and without the consent of the other States or 
 consultation Avith them, to destroy the Union. The advocates 
 of this theory go even further. Not content with claiming 
 for a State the right of separation, they contend that hy reason 
 of such an act, the legal tie Avhicli binds the others is severed, 
 the central Government annihilated, and each State at liberty 
 to form such combination as it pleases. Not only may a single 
 State withdraw, but at its bidding the Union can be broken 
 into as many pieces as there are States, Avhatever the wishes 
 of the people. When thus broken it cannot be reunited, save 
 by another convention to make another Constitution. 
 
 These arc principles not of Government but of misrule, not 
 of life but of death, not of union but of discord. One of their 
 fruits is this Southern rebellion. These doctrines have many 
 Northern advocates, friends of the Southern rebellion, and 
 unless rooted out with a determined hand, anarchy in the 
 North will be another of their fruits. 
 
 We thus find ourselves in the position of our fathers in 
 1787. We are threatened with anarchy and disunion, because 
 central power is too weak and local power too strong. We 
 must apply the same remedy which they applied : strengthen 
 the General Government and enforce the obedience of the 
 States. We need not for this purpose make another Constitu- 
 tion. That Avhich we already possess, liberally construed, is 
 all-sufficient. 
 
 The present rebellion has a twofold character. It is an 
 attack on the dignity and authority of the Government, and 
 it is an eifort to destroy the Union betAveen the Southern and 
 Northern States, and between all the States. The Avar made 
 by the GoA'ernment has therefore a double ])urpose : to assert 
 the majesty and legitimate poAver of the Government, and to 
 preserve the Union. 
 
 The Southern people have injured their cause by the manner 
 in AV'hich they have exercised their pretended right of seces- 
 sion. Granting for the sake of argument that right, it is an 
 ungracious act at best to AvithdraAv from the Union. It neces- 
 sarily implies injury to the interests and the feelings of the
 
 UNION. 185 
 
 other States and dissatisfaction >vith the Government. It im- 
 plies loss of power and territory to the nation. When coupled 
 with the doctrine that the withdrawal of a State severs the 
 tie that binds the others together, the right pf secession im- 
 plies the right to utterly destroy the nation and its Govern- 
 ment. These are high powei's to be exercised by a single 
 State, or even by a majority of the States, Is it unreasonable 
 to expect that those who use them should do their spiriting 
 gently ? Arc the States whose Union with each other is to 
 be thus sundered against their will, and whose interests are to 
 be sacrificed, — is a Government which is to be thus suddenly 
 extinguished, — is a great nation which is to be in this summary 
 manner blotted out from the Avorld's roll of nations, — are all 
 these momentous concerns, and the deep feelings connected 
 with them, and the profound attachments they inspire, and the 
 large hopes that hang upon them, entitled to no consideration, 
 no comity, no courtesy ? A haughty demand and a haughty 
 threat ; — must the Government abdicate its power, and the 
 Union fall to pieces before these, like the walls of Jericho at 
 the blast of Joshua's horns ? 
 
 All rights known to the law have some formal and orderly 
 manner appointed for their assertion, all, it seems, except this 
 right of secession. It may be preceded by secret conspiracy and 
 official breach of trust, may be veiled by lying professions of 
 loyalty up to the moment of action, and may be announced 
 by words of insult and deeds of violence and outrage. Such 
 crimes cannot accompany the exercise of any legal right or be 
 authorized by any law. When the leaders of Southern poli- 
 tics covertly stripped of its defences the Government of which 
 they were the sworn officers ; when they seized the forts, ar- 
 senals, mints, ships, and all other property of the nation on 
 which they could lay their felonious hands ; when they openly 
 enlisted armies and when they fired on our flag, they aban- 
 doned the right of secession. They instantly made another 
 issue between themselves and the Government in which that 
 right had no part. They raised another question, involving 
 interests, compared with which the loss of all the South was 
 not Avorth a moment's thought. They cast off' the character
 
 186 THE TRIAL OF THE CONSTITUTIOX. 
 
 of representatives of States, making a claim which, whether 
 legal or illegal, might be reasonable and just, and if respect- 
 fully urged, was entitled to a respectful consideration, and be- 
 came criminals, whom it was the duty of the Government to 
 punish. They proflfered to the Government not legal demands 
 .to be discussed, but rebellion to be resisted at all hazards, and 
 whether the claims were legal or illegal, just or unjust. They 
 insulted the other States by disregarding their interests, 
 opinions and wishes, by defying the authority of their Go- 
 vernment, and by outraging their flag. What has the right 
 of secession to do with such a case ? Granting that its magic 
 touch obliterates the Government, and breaks the Union 
 into fragments, surely the Constitution must have intended 
 these dismal results to be brought about in some way consis- 
 tent Avith order and law, with the honor and self-respect and 
 ultimate interests of the people. It is impossible that Wash- 
 ington, Hamilton, Jay, Dickinson, Franklin, and the other 
 founders, meant to justify sedition, conspiracy, treason and 
 rebellion, or to create a Government without power to resist 
 these, and whose duty it is to vanish at their bidding ; or that 
 they intended to make a Union with no judgment, no will, no 
 power over its own destiny, but which may be suddenly 
 plunged into anarchy at the command of one of its own mem- 
 bers. The Confederation was a helpless Government and a 
 loose Union ; but a Government that cannot draw a sword 
 to resist armed violence, a Union that must dissolve at a 
 threat, as snow melts at the touch of fire, would be weaker 
 even than the Confederation, and more contemptible. 
 
 When the Government was thus sommoned by an armed 
 rebellion to abdicate its authority, Mr. Buchanan was the 
 President. Neither he nor his Attorney-General could find 
 in the Constitution any power to make Avar upon a State, so 
 they said, and accordingly the President did virtually abdicate 
 his authority, for he refused to exercise it, though he remained 
 nominally in office to the end of his term. When Mr. Lincoln 
 came into power, he discovered a clause Avhich told him that 
 it Avas his duty to " take care that the hiAvs be faithfully ex- 
 ecuted," and another, Avhich declares that to "levy Avar" 
 
 I
 
 UNION, 187 
 
 against the United States, or to " adhere to their enemies, 
 giving them aid and comfort," is treason. He remembered, 
 moreover, that he had taken an oath " to preserve, protect 
 and defend" the Constitution, in which his duty was thus 
 clearlj laid down. As the laws act directly upon persons and 
 not at all upon States, he probably thought, — if he thought 
 about a distinction so frivolous, — that to execute the law upon 
 persons was not making Avar upon a State. He knew that 
 levying war against the United States was treason, and not 
 less so, because the guilty parties were Governors of States 
 or members of State Legislatures or conventions. He knew, 
 also, that it was his province to defend the property of the 
 nation from all hostile aggressions, that to enable him to do 
 so, he Avas Commander-in-chief of the Army and Navy. 
 
 Mr. Lincoln, tlierefore, refused to abdicate. He could see 
 no right of secession in treason and rebellion. He could 
 see nothing but a crime to be punished and an attack to be 
 resisted. Military force became necessary to execute the laAVS 
 and he employed it. The contagion of the rebellion spread 
 over a great section, and its ranks swelled into a powerful 
 army. Congress put a large army at the disposal of the Pre- 
 sident. These armies have met on many a bloody field, and 
 a contest between great armies is war. A contest between a 
 Government and a large portion of its people is civil war, and 
 such is this now raging in our country. It is not a contest 
 between the Government and the States. The authority of 
 the central Government acts not upon States, but upon indi- 
 viduals. That is the chief difference between it and the old 
 Confederacy. A State cannot be guilty of treason or rebel- 
 lion. Traitors and rebels are not corporations, but men, and 
 as such amenable to the law. 
 
 The primary object of the war, therefore, is to vindicate 
 tlie outraged dignity and honor of the Government, and to 
 maintain the authority of its violated laws. Unless it can do 
 this, it must lose caste and character as a Government, confi- 
 dence at home and reputation abroad. A Government that is 
 defied and insulted Avith impunity, that yields to threats and 
 makes concessions to armed rebellion, has no right to exist,
 
 188 THE TRIAL OF THE CONSTITUTION. 
 
 cannot indeed long exist. It is sick with a fatal disease, has 
 no longer any useful part to play among the living, and the 
 sooner it dies and is shovelled away out of sight the better. 
 A Government without power is a sham and a lie, and the 
 question which the Southern people presented to the Northern 
 was, not shall we withdraw from the Union, but shall your 
 Government become a sham and a lie, — a very different and far 
 more serious question. It would be a misfortune, no doubt, 
 to lose our Southern territory, but that loss Avould be a trifle 
 compared with the ruin of having no Government, or the 
 mockery of a Government, that could not protect itself or the 
 nation, or command obedience or inspire the feeling of' secu- 
 rity at home or respect abroad. 
 
 Mr. Lincoln answered the question thus audaciously put by 
 the leaders of the rebellion. He declared that the Govern- 
 ment of the United States still existed, and he announced the 
 fact to them and to the world in resounding cannonades, whose 
 meaning is plain enough. What they say is, that the laws 
 must be executed in Charleston and Savannah, and Richmond 
 and New Orleans, in order that they may have authority in 
 Philadelphia and New York, in Chicago and San Francisco ; 
 that our flag must fly again at Fort Sumter, that it may be 
 honored on the high seas and in foreign p'orts ; and that when 
 this Government discusses the right of secession, it will not be 
 Avith secret plotters of treason and armed rebels to its authority. 
 
 The right of secession has therefore never been presented 
 by the South to the consideration of the Government or of the 
 Northern people. Whilst loudly asserting it, the South have 
 not depended on its legality, but have resorted to other means, 
 so destructive, that the issue was necessarily made upon those 
 means. Neither has the South presented a case for the disso- 
 lution of the Union between them and the other States, by 
 mutual consent. Had Southern members of Congress, like 
 the Scotch members of Parliament in the instance already re- 
 ferred to, brought in a bill to dissolve the Union, the merits 
 of the claim might have been discussed, and the debate would 
 have brought out the real sentiments of the country North 
 and South. ' Was the Union a bui'den and a misfortune to the
 
 UNION. 189 
 
 South ? Had the rule of the central Government been unjust 
 and oppressive? Were the well-ascertained opinions of the 
 Northern people in relation to slavery such as endangered the 
 safety and the interests of the South ? Was there a proba- 
 bility of a Southern Confederacy being established that could 
 maintain its independence as a nation ? What injurious con- 
 sequences would the separation cause to the North, and could 
 they be avoided ? Above all, what were the wishes and calm, 
 deliberate judgment of the Southern people on the subject, 
 and in how many of the States did they really desire separa- 
 tion, and by what majorities ? 
 
 These and other important questions would have been duly 
 considered. Had they been answered favorably to the claim, 
 with no means of satisfactory adjustment possible, it is not 
 hazarding much to say that the demand for separation Avould 
 have been yielded. It would have been asking indeed a great 
 deal. It would have been asking Northern manufactures to 
 give up a right to the cotton crop without impost or restraint ; 
 Northern commerce to give up the control of the Gulf coast ; 
 the Northwest to give up the free navigation of the Mississippi 
 and the command of its outlet, and the Northern people to 
 give up their undivided share and interest in vast and fertile 
 regions. It would have been asking a nation to diminish its 
 power and resources, and to permit the establishment on its 
 border of another nation who might become an enemy, who 
 could make alliances with its enemies and defeat its tariffs. 
 
 All this would have been implied in a demand for Southern 
 independence. Nevertheless, had it been in itself reasonable 
 and just, and had it been made with due deference to the sen- 
 timents and interests of the North, so strong is the love of 
 Americans for State power, so universal their conviction that 
 a people has a right to choose or change their government at 
 will, that most probably such a demand, so made, would not 
 have been rejected. If rejected, the position of the South 
 would have been much better than it is now. Even now it 
 has partisan friends and allies in the North. In the case sup- 
 posed these would have been a host. Even now it has many 
 sympathizers in Europe. In the case supposed foreign sym-
 
 190 THE TRIAL OF THE CONSTITUTION. 
 
 patliv would ere this have caused recognition of Southern inde- 
 pendence, and active aid to secure it. 
 
 But in truth, the cause of the South had none of these 
 merits, and the conspirators did not dare submit it to the scru- 
 tiny of the nation or to the cahn judgment of the Southern 
 people. They had suffered no real grievances. So far from hav- 
 ing been oppressed by the central Government, they had almost 
 always controlled it, and were very likely to control it again. 
 At the very moment of the rebellion they had a majority of 
 the Senate and a powerful party of allies in the North. The 
 Union was a benefit to the Southern people. Under its guar- 
 dian care, its one supreme and cherished institution and its 
 chief staple grew and'flourished with immense annual increase. 
 The Union and Northern opinion were the protectors of sla- 
 very, — its only protectors against the enlightened spirit of the 
 age. The Cotton States could not maintain themselves as a 
 separate nation, half African as they are, and without manu- 
 factures or commerce, but would become a dependency of some 
 European power. More than all, the Southern people did not 
 desire separation. They appreciated the value of the Union, 
 and the majority in every State, except South Carolina, had a 
 free expression of opinion been permitted, Avould have rejected 
 the proposal to secede from it. 
 
 But this Avas not permitted. All the arts of practised dema- 
 gogues were employed to prevent it. Inflammatory harangues, 
 boundless falsehood, ceaseless agitation, the influence of a domi- 
 nant class and of prominent men, were actively exerted with- 
 out success. Official authority disregarded the wishes of the 
 people, and conventions instructed to vote against secession 
 voted for it. When the deed was done, and when war was the 
 result, then the passions generated by war, more especially 
 in an invaded country, arrayed large numbers of the people 
 against the Union. The masses of the South are ignorant and 
 poor. They are easily deluded and easily led. They are ac- 
 customed to the guidance, often to the arrogant dictation, of 
 a small class. What may be their opinion now, how far the 
 expression of it may be restrained by a revolutionary govern-
 
 UNION. 191 
 
 ment, and how far their apparent adherence to the rebellion is 
 real, cannot be known. 
 
 As secession has neither law nor merit to support it, the 
 Government and the Northern people must treat it as a rebel- 
 lion to be quelled and an attempt to desi;roy the Union to be 
 resisted. iVnother object of the war, therefore, is the preserva- 
 tion of the Union. 
 
 This view of the subject is so full of difficulty and danger, 
 that all thinking men must regard it with dismay. Broken 
 Unions are not easily restored. They are like pitchers broken 
 at the fountain. Broken marriages, broken friendships, — how 
 can they be again cemented with the old love ? "A brother 
 oiFended is harder to be won than a strong city, and their con- 
 tentions are like the bars of a castle." Is the Union one of 
 parchment only ? Does it depend wholly on the Constitution, 
 and on cunning adjustment of central and local power? Are 
 not these weak, when moral bonds are wanting, — sympathy, 
 similarity of manners and taste, a common interest, common 
 objects and common hopes ? And have not these been long 
 wanting between North and South ? Seven years of war fol- 
 loAved the severance of the union between our ancestors and 
 England, and then it was not restored. The first gun fired at 
 Lexino-ton broke it forever. The Convention that met in 1787 
 made a Constitution "in order to form a more perfect Union," 
 not to mend the broken links of one that had been severed. 
 There had been no war between the States, — no battle-fields, 
 sad records of fratricidal bloodshed and sectional hate. 
 
 Perhaps the Union cannot be restored. The South has 
 shown unexpected force and unity and military skill. It has 
 been victorious in many combats. It may be assisted by Euro- 
 pean intervention. The North, notwithstanding its great re- 
 sources and superior strength, may yield the boon of indepen- 
 dence, as England did, rather than encounter the losses and 
 dangers of a long war. 
 
 Perhaps the rebellion may be crushed and its armies dis-
 
 192 THE TRIAL OF THE CONSTITUTION. 
 
 persed, yet the Soutliern people sullenly refuse to return to 
 the Union and participate in its government ; or they may re- 
 turn un-\villingly, -with simulated loyalty and reluctant obedi- 
 ence, discontented, ever ready to revolt again, a source not of 
 strength hut of weakness, and more than ever a divided peo- 
 ple, — a Poland, a Hungary, a Venetia. 
 
 INIay not the Northern people say they desire no such Union, 
 no such companionship ; that the Union they require is one of 
 consent and mutual good will ; that they will not live on equal 
 terms with those who hate them, or meet them as representa- 
 tives in a common Government ? 
 
 In either of these cases, where is the line of separation to 
 be drawn ? Is it to include in the South the Cotton States 
 only, or the border Slave States also, or some of them, or parts 
 of some of them ? A most important question for the North, 
 for on it depends whether we shall have for a neighbor and 
 probable enemy, a weak or a powerful nation. 
 
 Another question still more important is, who is to draw the 
 line of separation, for that will probably determine, whether 
 the country is to be divided into two or into many nations. A 
 united North would make a great empire, rich in all resources, 
 full of life and vigor, strong enough to defy the world. But 
 an East, a West, a middle region, and a South, would be weak- 
 ness for each and perpetual war. Who is to settle that ques- 
 tion ? The States themselves, as such, or a convention of 
 the States ? Either plan would recognize the right of seces- 
 sion, and the false and fatal doctrine, that the Union once 
 broken, as to one State, is broken as to all. Either plan would 
 unsettle men's thoughts, inspire universal alarm (for none 
 could know what the others would do), and give free scope to 
 the ambitious designs of demagogues and the insane rage of 
 party spirit. In such a crisis, a National Government, strong 
 enough to make itself obeyed, is the only rock of safety ; it 
 alone can inspire confidence and save the country from anarchy. 
 The Government established by the Constitution has power 
 adequate to the occasion. It has power to preserve the Union, 
 the legal Union, the Union seceded from and rebelled against, 
 the whole of it, or as much of it as can be held, or as the majority
 
 UNION. 193 
 
 of the people choose to have. It alone can draw the line of 
 separation, and defend it when drawn. It alone can secure a 
 prosperous and united North. Give this power to the several 
 States, each to decide for itself, as hopes and fears and parti- 
 san intrigue and popular passion may dictate, and the fate of 
 continental Europe will speedily be ours. 
 
 Already the dangers of such a plan have been foreshadowed 
 by the course of the Democratic party in Pennsylvania, so 
 early as January, 1861, in anticipation of the war not then 
 begun. Even then the leaders of that party passed a resolu- 
 tion, to the principles of which they have since adhered, de- 
 claring that in the event of separation, Pennsylvania ought, 
 and legally might join the Southern Confederacy. Grant such 
 a right, strip the Government of power to preserve the Union 
 after the separation of a State, and what a chaos of ruin would 
 follow, should the rebellion accomplish its objects. We are 
 wont to talk of the weakness of the South ; but all the nations 
 of the world combined could not destroy us so completely as 
 the South may, should these monstrous doctrines be carried 
 out to their practical results. This, indeed, may well be a 
 war to preserve the Union, if such are to be the consequences 
 of disunion. 
 
 Perhaps the Northern people may choose, and may have the 
 power to preserve the Union against the wishes of the South. 
 They may determine to conquer the South, and to hold it in 
 subjection by military force. They have offered to the Southern 
 people from the commencement of the war, peace, good will, 
 and their former equal and honorable position under the Go- 
 vernment, on the sole condition of laying down their arms. 
 Wherever our armies went they have proclaimed that they 
 came to preserve, not to destroy ; that they did not make war 
 on the people, but on the rebellion. Private property and non- 
 combatants have been respected, even slaves escaping to our 
 camps, have been returned. This offer has been spurned with 
 scorn, these words and acts of kindness have been repulsed 
 with every expression of malignant hate. Our good will has 
 been met with curses and execrations, even by the women. 
 
 The Northern people are not very excitable. They are slow 
 
 13
 
 194 THE TRIAL OF THE CONSTITUTION. 
 
 to anger, but they can be moved to anger, and tlien their rage 
 is not easily appeased. They prefer peace to war, but they 
 love war and its excitements, which develop those qualities 
 that make their race everyAvhere conquerors ; courage, ad- 
 venturous energy, stubborn tenacity of purpose, love of supre- 
 macy and power, "an indomitable rock-made race of men," 
 descendants of Hengist and Horsa, of the Norsemen and Sea- 
 Kings, who conquered the Celt in France, England, Scotland 
 and Ireland, and held him conquered, overturned the Roman 
 Empire, and spread havoc through its ancient cities, and here, 
 for Avant of other opposers, have conquered the primeval 
 forests, and founded an empire on the home of Indian tribes. 
 Perhaps these Norsemen of America may say, " This Southern 
 country is ours by right, and we will have it, in its length and 
 breadth, with its coasts and cotton, its rivers and ports ; it is 
 ours, and it shall be ours, if we must make it a desert. The 
 Southern people hate us, defy us, make war upon us. We 
 accept their challenge, and will treat them as enemies. They 
 reject the Union, will not live Avith us in the Union. Be it 
 so ; we Avill reject them from the Union, but still hold their 
 country. They call us abolitionists. We accept the title, and 
 will abolish slavery, or anything else that stands between us 
 and our purpose. They have attempted to destroy our Go- 
 vernment. We Avill make them, not its citizens, but its 
 subjects." 
 
 This would be a Gothic way of settling the controversy, and 
 the Gothic nature is not extinct, however softened and refined 
 by culture and civilization. The old Norse temper survives 
 and shoAvs itself on occasion. What would the Englisfi people 
 do in like circumstances ? Would they give- up territory to a 
 threat ? Would they palter and argue, and negotiate Avith a 
 causeless and Avicked rebellion, or oifer concession and com- 
 promise in return for insults and bloAvs ? Would they suffer 
 their Empire to be dismembered for the sake of slavery, or 
 permit an enemy to exist within its rightful limits, Avhere, if 
 they could not have a friend they might have a dependent ? 
 Would they give up Ireland ? They conquered it, and have 
 held it conquered through centuries of Avar, and more than
 
 UNION. 195 
 
 once Av ell-nigh exterminated its inhabitants, rather than give 
 it up. Would they give up Scotland ? Through long cen- 
 turies they made incessant efforts to conquer the Scotch, efforts 
 which ceased only when their object was accomplished by the 
 Union. Did they give up us? Rather than do that they 
 fought us for seven years, across three thousand miles of 
 ocean. "Would they give up India? It was only the other day 
 that they tied seceding Hindoos before the mouths of cannon, 
 and blew them into fragments. The Norse blood beats yet to 
 its old tune under the silken vesture of the nineteenth century. 
 This stern deed was done by gay and graceful officers, of gentle 
 birth and cultivated manners, the " curled darlings" of London 
 drawing-rooms. When the news of it reached home, civilized, 
 humane, lettered and Christian England muttered hoarse 
 applause. 
 
 Whether we are to have Union or disunion, and on what 
 terms, whether Ave are to be one nation or many nations, no 
 one can predict. Who can foresee the results of such a war ? 
 Who can foresee the many difficult questions that may grow 
 out of it, affecting even the nature and form of the Govern- 
 ment ? Who can foretell what direction the rushing torrents 
 of opinion and passion may take or to what changes they may 
 lead ? All that we can know is that there will be changes, 
 that we have entered on a nevf chapter of our history. We 
 are tossed on the billows of a raging sea. Must we strand 
 upon the rocks for Avant of order and rule ? Never before 
 Avas a National Government so necessary as noAV, — a Govern- 
 ment that can command, can coerce, can be a captain in the 
 storm. We Avant a Government with ability to grasp the 
 situation of the country, and Avith undisputed poAver over the 
 Union and, if need be, OA^er the Constitution. Nothing less 
 than this can save us from anarchy and its consequence, a 
 military despotism. If, because of factious opposition, the 
 arm of the Government is made Aveak and its authority re- 
 sisted, then all parties Avill call for the one man power, and 
 put in its hand a sAvord ; for men prefer security to liberty, 
 will sacrifice liberty for security, and self-preservation is the 
 first laAv of nature and of nations. Thus have republics al-
 
 196 THE TRIAL OF THE CONSTITUTION. 
 
 ways been destroyed. Reckless party-spirit dividing the 
 people has made impossible a government representing the 
 people, and substituted for it a government beyond their con- 
 trol as the only refuge from confusion. "When neither party 
 will submit to the rule of the other, all government must cease, 
 and unless some power arises out of the strife, strong enough 
 to control both, society must cease. In this way anarchy has 
 ever been the blood-red blossom of democracy and despotism 
 its mature fruit. 
 
 The people may soon be called on to decide between giving 
 absolute power to the Government or to a military chief. But 
 is it not dangerous, men say, to trust any Congress and Presi- 
 dent we have had, or are likely to have, with such power, — 
 power over the Union, over the Constitution ? Yes, verily, it 
 is dangerous. Yet what is the power of Congress and the 
 President ? Is it not the power of the people by whom they 
 are chosen ? Can we find anything to trust that would not 
 be chosen by the people? If we cannot trust the people, 
 then, once again, democracy has failed. 
 
 It is not, however, a question of what is desirable, but of 
 what is and must be. The Government has the power, not 
 only by the Constitution, but by the eternal laws of nature, 
 which cannot be disobeyed with impunity. No previous crisis 
 has revealed the necessity for such power and its consequent 
 existence. To deny and resist it, will be to destroy the Go- 
 vernment and make Avay for another of a different character, 
 vested with this essential power. This would be revolution ; 
 and should it happen, it will not be the first instance of "the 
 loss of a rejected truth, for the Avant of which whole nations 
 fare the worse." 
 
 If the reasoning in this and the preceding chapter be cor- 
 rect, it establishes the folloAving propositions : 
 
 The people and the States of 1862, in Congress assembled, 
 have supreme power over the Constitution made by the Con- 
 vention appointed by the States in 1787, and accepted by the
 
 UNION. 197 
 
 people, to alter it as necessity or expediency may require. ]N"o 
 legal autliority exists or can exist by which such action of Con- 
 gress can be declared void and the people released from their 
 obligation to obey the laws. But any act of Congress is void- 
 able by the people and the States assembled in another Con- 
 gress, and it is the duty of Congress and of all other officers of 
 Government to maintain the Constitution inviolate, so long as it 
 can be so maintained consistently with the safety and welfare 
 of the nation, and to make no change in any part of it not 
 demanded by necessity and sanctioned by public opinion. 
 
 The American Colonies before the War of Independence 
 were members of a Union which was both a confederacy and 
 a nation, viz., the British Empire, but were not represented 
 in its central power. 
 
 They afterwards, under the Articles of Confederation, be- 
 came members of a Union which was merely a confederacy. 
 
 By the Constitution they again, as States, became members 
 of a Union which was both a confederacy and a nation, and 
 were represented in its central power. 
 
 As the nation is more important than a State, State j^ower 
 must be subordinate to national power. As a nation has a 
 right to preserve itself and to do all things necessary for its 
 progress, well-being and perfection, it has a right to limit, in- 
 crease or diminish its size ; but no State has a right to destroy 
 the nation of which it is a member, or to weaken it or to de- 
 prive it of a part of its territory. 
 
 The people and the States of 1862, in Congress assembled, 
 have imperial and sovereign power over the Union as it ex- 
 isted before the present rebellion. They have the legal right 
 to maintain it by force of arms if they can, or to relinquish a 
 portion of it if they cannot, or to dissolve it with or against 
 the consent of any part of it, and the people of no part have 
 any legal right whatever to withdraw from the authority of 
 the whole. It is the duty of Congress and other officers of 
 the Government to preserve the integrity of the Union if they 
 can and it be desirable that they should. It is their duty to 
 permit any one or more of the States to separate from the 
 Union, if their people desire to do so for just and reasonable
 
 198 THE TRIAL OF THE CONSTITUTION. 
 
 causes. It is the duty also of the Federal Government to 
 expel from the Union any one or more of the States which, 
 from the nature of their institutions, political or social, or be- 
 cause of the predominance of an inferior race, or of their de- 
 graded moral and intellectual condition, or by reason of their 
 inveterate hostility, misrule and insubordination, become un- 
 able to participate in the mental and material civilization of 
 the others, unable to appreciate civil liberty and unfit to ex- 
 ercise political power. 
 
 In these cases, as in the former, should tlie Government 
 exercise its power oppressively, the only legal remedy is the 
 ballot-box, which can choose another Congress better instruct- 
 ed as to the wishes of the people, and armed with the same 
 authority to undo what the former had done. 
 
 There can be no other legal security against abuse of power 
 except that afforded by the internal structure of the Govern- 
 ment and the influence of public opinion. The States are 
 represented by the Senate, the people by the House and by 
 the President ; the concurrence of all is necessary to the pas- 
 sage of a law. Each could therefore • interpose such obstruc- 
 tions and delays, that before the whole Government could 
 unite in any measures at once unconstitutional and tyrannical, 
 the people would be roused and would resort to all those ever- 
 ready instruments by which intelligent opinion, under free in- 
 stitutions, makes itself heard and obeyed. The State Go- 
 vernments would remonstrate and threaten, the press would 
 pour forth its daily torrent of argument and invective, tlie 
 maclunery of at least one party would be put in requisition, 
 and popular assemblies, in town and country, would speak in 
 tones that could not be misunderstood and could not be dis- 
 regarded, because they would announce beforehand the result 
 of the next election. 
 
 These aiford a better security than the weak protest of a 
 Court which does not represent the people, and the only pos- 
 sible security. Should it happen that all branches of the Go- 
 vernment united in harmonious action, and that the great ma- 
 jority of the people sustained tliem, tliese facts Avould be 
 evidence that the measure, however novel it might be, was
 
 UNION. 199 
 
 wise and necessary, and such as ought to be adopted ; and that 
 word ought commands men and nations and constitutions. In 
 such a case what ouglit a Judiciary to do ? Set itself in oppo- 
 sition to the combined power of the people and of the Govern- 
 ment ? Woukl not its decree, with whatever strength it 
 possessed, tend to the destruction of the Constitution it pro- 
 fessed to support, to the destruction of the nation it pretended 
 to save, to the chaos of revohition and the wikl misrule of 
 anarchy ? 
 
 The powers of Congress must therefore be unlimited, if they 
 are to be "adequate to the exigencies of the Union." They 
 must be unlimited to carry us through the consequences of this 
 war, because these can neither be foreseen nor defined. They 
 must be unlimited over the Union and the Constitution, be- 
 cause the war may make it necessary to alter both. They 
 must be unlimited, because in the perils by which we are sur- 
 rounded and the greater perils that await us, nothing short of 
 the whole power of the people, exercised without opposition or 
 dispute, can save us from ruin, and it must be exercised wisely 
 too, or it will fail. This- power is nothing more than the latent 
 and reserved, but absolute and despotic authority, which every 
 Government must possess, to use in case of need. If it be not 
 granted by the Constitution, it must be employed nevertheless, 
 for we cannot resort to the process of the Fifth Article. If 
 the Union and the Government cannot be saved out of this 
 terrible shock of war constitutionally, a Union and a Govern- 
 ment must be saved unconstitutionally. 
 
 We the people of 1862 are not to be commanded to our de- 
 struction, by even the best and wisest of the people of 1787, 
 whose bodies are now resting in their graves, and whose spirits 
 are perhaps mourning over the destruction of their hopes. A 
 Union, a Government and a Constitution that suits us we must 
 have. Before us yawns the gulf of separation and revolution, 
 as it did before our fathers in 1787, — monstrous, unfathoma- 
 ble, chaotic, — its darkness lighted only by lurid fires, reveal- 
 ing inexhaustible magazines of passion and the distorted fea- 
 tures of the furies and of perpetual war. What shall we do ? 
 Amend the Constitution according to the Fifth Article ? None
 
 200 THE TRIAL OF THE CONSTITUTIOX. 
 
 but a madman -would propose that now. Shall we, as our 
 fathers did in 1787, call a convention of our wise men to make 
 another Constitution, "adequate to the exigencies of the 
 Union?" We cannot do this in the midst of war. Such 
 labors and deliberations require the calmness and security of 
 peace, and our ancestors waited the return of peace before at- 
 tempting them. Even then it was a task of infinite difficulty, 
 not so much to make a Constitution as to persuade the people 
 to invest a Convention with authority to make one, and then 
 to persuade them to accept it when made. Yet they had 
 Washington, Hamilton, Jay, Madison and others of similar 
 stamp, to whom they could trust the work. We have no such 
 men, and cannot summon these sages of the past to help us. 
 Neither is it necessary now, as it was then, to abolish an old 
 and to make a new Constitution. The statesmen we have 
 mentioned, if they could not render their performance perfect, 
 did not leave it so imperfect that it must be remodelled or 
 altered in its general plan and structure. They were too wise 
 and too well instructed by experience and by liberal studies for 
 that. The living principles, the true spirit and meaning of 
 the Constitution which they left us, if it be executed by the 
 light of those principles, are sufficient for our preservation, 
 now and forever. If faults it has, these are in its minor and 
 subordinate parts, and its spirit and intention do not more 
 authorize than command us to alter those parts, as time may 
 show them to be defective, or new circumstances may require 
 changes. 
 
 Since then we cannot now make these changes according to 
 the Fifth Article, nor call a Convention in the midst of war 
 to decide questions relating to the Union, surely nothing re- 
 mains to be done but to arm the existing Government by our 
 support, with all the power that a Convention would have, 
 that is to say, with the whole power of the people, because 
 nothing less than the whole can be adequate to the crisis. If 
 the reasoning of this and of the preceding chapter be correct, 
 Congress has now and must have this power, for the reserved 
 powers of the people, if they cannot be exercised, do not exist. 
 But their fancied and asserted existence may nevertheless
 
 UNION. 201 
 
 aiFord a pretext for factious opposition to tlie Government, 
 more dangerous during the war than the arms of the enemy, 
 and more dangerous after tlie Avar than treason itself. These 
 imaginary reserved powers of the States and the people gave 
 color and support to the monstrous claims and pretensions 
 which caused the rebellion, and unless they are disavowed and 
 rejected by the good sense of the country, will forever prevent 
 our again becoming a nation, for there can be no such thing 
 in nature as a nation without a National Government.
 
 202 THE TRIAL OF THE CONSTITUTION. 
 
 CHAPTER III. 
 
 EXECUTIVE POWER. 
 
 The present war has revealed weakness and uncertainty in 
 a part of our system where few expected to find it. The 
 Executive branch of the Government was a novelty, created 
 partly out of the past and partly invented to meet the de- 
 mands of a new situation. Under the strain of the existing 
 crisis, it has become doubtful whether this invention has the 
 power to provide for the public safety and at the same time 
 maintain the security of personal liberty. As the Convention 
 was obliged to make a Union out of the old Confederacy to 
 suit the necessities of the times, so also were they obliged to 
 make for a Government -svhich was to act directly upon per- 
 sons and things, an Executive which must not be a king, but 
 must have power and functions very like those of a king. 
 Royalty was out of the question, but some authority to exe- 
 cute the laws, to represent the country in its foreign relations, 
 and to perform other royal duties, was absolutely necessary. 
 How to invent an elective king, a republican king, powerful 
 enough, but not too powerful, was the difficult problem. 
 
 All these attributes existed in the English model, therefore 
 in the traditions and recollections of every member of the 
 Convention. In that -wonderful product of time, the English 
 Executive, the person to hold the highest social and political 
 rank in the nation, is chosen by laAV, so that the dangers of a 
 popular election or of the designs of aspiring ambition are 
 avoided. But this person, hoAvever important his functions, is 
 scarcely a monarch, for he has no responsibility and but little 
 power. " The king can do no wrong, cannot even intend a 
 wronfii:," This is the maxim Avhich lies at the foundation of 
 the modern English throne. The meaning of the principle is,
 
 EXECUTIVE POWER, 203 
 
 not that the king is incapahle of an immoral act, but that, as 
 the hiw professes to offer a remedy for every wrong, and as 
 the king coukl liardly he punislicd without causing a civil 
 Avar, he is exempted from the penalties of the law. But if 
 the king can do no wrong, his advisers may, and without in- 
 curring a like risk, may be made responsible. To impose 
 responsibility without bestowing power, would be unjust, wovdd 
 be impossible. Power and responsibility have thus fallen to 
 the ministers of the Crown ; and who are those ministers ? 
 Members of the Legislature, holding office only so long as 
 they are sustained by a majority of the Legislature ; in other 
 words, by the enlightened public opinion of the nation. The 
 English Executive therefore is monarchical without arbitrary 
 power and republican without being elective. It is aniique ; 
 a genuine outgrowth of English character. It is a product of 
 the whole past of the nation, its labors, struggles and dangers, 
 aspirations and achievements through the centuries, and its 
 elements may be traced up through the history of the people 
 to feudalism, to Saxon Arthur and Alfred, nay to their Ger- 
 man ancestors described by Tacitus, as in the acorn may be 
 found a miniature picture of the future oak. 
 
 The irresponsibility of the Crown and the responsibility of 
 its ministers were established as maxims of the British Con- 
 stitution by the Revolution of 1688. The principle, asserted 
 before, was confirmed and strengthened by that revolution, and 
 the exclusive poAver of ministers in all important measures 
 soon followed as a necessary consequence. In the early ages 
 of the Government, the functions of the Executive and the 
 Legislature were not accurately divided, as they never are 
 among a rude people. The monarchy was first feudal, and a 
 struggle arose between the Barons and the King, in which the 
 former obtained Magna Charta, the great organic laAV of 
 English liberty. As commercial wealth increased, the House 
 of Commons acquired importance, and the contest for power 
 was between that body and the King. In the Revolutions of 
 1645 and 1688, the House of Commons gained the victory, 
 its supreme authority in the Government Avas established, 
 and Hume says that " the share of poAver allotted to it is so
 
 204 THE TRIAL OF THE CONSTITUTION. 
 
 great that it absolutely commands all otlier parts of the 
 Government." Such, therefore, was the condition of the 
 English Executive at the time our Constitution Avas made. 
 Its essential feature was subordination to the Legislature, for 
 the ministry "was and is the real Executive power. 
 
 The Convention that made our Constitution were obliged to 
 invent an Executive department, a machine, so to speak, by 
 which the Executive authority, essential to every Government, 
 could be applied. In this as in all other things, the English 
 Constitution was necessarily their model. They could have 
 no other, for the customs and ways of thinking of England 
 were theirs also. Whatever in the English plan of Govern- 
 ment was unsuited to their condition, they discarded or 
 altered, but they adhered to it and its principles so far as 
 they could, under the new circumstances in which they were 
 placed. They were about to make an organic law for the 
 Government, superior to it and controlling it, as the act and 
 will of the people. They were about to make a written Con- 
 stitution, and they could have no other model than the un- 
 written Constitution of England or the custom of the realm 
 in political law. They adopted it, except in parts which they 
 intentionally altered, just as they necessarily and for the 
 same reason adopted the common law. Psychologically it was 
 impossible for them to do otherwise, for they brought these 
 customs with them to this country in their minds, memories, 
 hearts and traditions. The analogy between our law and 
 that of England is genetic and cannot be overlooked, and the 
 true rule of interpretation is to consider them the same, unless 
 expressly or impliedly altered, becavise unsuited to our circum- 
 stances. It is simply a truth of mental science that such 
 must have been the intention of the law-makers. The Con- 
 stitution was the embodiment of tlicir thought, and that of the 
 people for whom it was made and Avho accepted it. Not the 
 civil law but the common law, not French, Austrian or Turk- 
 ish ideas of government, but English ideas were in their 
 minds, because English blood ran in their veins. 
 
 A short time, little more than seventy years, — most of them 
 years of peace and prosperity, — have elapsed, and a crisis has
 
 EXECUTIVE POAYER. 205 
 
 arisen wliicli is to test the workmanship of the Convention in the 
 Executive power of the Government, as it is testing the Union 
 which they intended to consolidate and make perpetnal. Two 
 vital questions have arisen, involving the very ends and pur- 
 poses of this Government and all Governments : what is the 
 power of the Executive to defend the nation from the danf^ers 
 of civil or foreign war ? and what is the security afforded by 
 law for the personal liberty of the citizens ? It seems that 
 both these questions are doubtful, for both are doubted. The 
 President has caused many persons suspected of treasonable 
 designs or practices to be arrested and detained in confine- 
 ment, suspending the privilege of the writ of Habeas Corpus 
 by his sole authority. Congress has acquiesced and so have 
 the people, for the necessity was urgent and obvious, and the 
 confidence which Mr. Lincoln has inspired is so great and so 
 general, that few are willing to censure acts Avhich all know 
 to be prompted by pure motives and a high sense of duty. 
 
 But this general consent is not law, though it may create a 
 precedent which hereafter may become law. The legality of 
 the President's course has been made the subject of much dis- 
 cussion, and different views of it have been taken by men 
 whose opinions are entitled to respect. The Attorney-Gene- 
 ral, Judge Parsons, Professor of Law at Cambridge, Mr. 
 Binney and others have made elaborate arguments, all dif- 
 ferent, some of them conflicting. It is therefore plain that 
 the Executive machine constructed by the Convention does 
 not work well, that it puts great interests and essential prin- 
 ciples in jeopardy, that it is not clearly understood by those 
 who have to manage it. It is a portion of our Constitution 
 that is new, and therefore has to be tried and construed, and 
 out of that trial and interpretation must grow a rule of con- 
 duct for the future. Seeing that things so momentous as na- 
 fe tional existence and personal liberty are involved, the subject 
 demands a calm and dispassionate consideration, free not only 
 from party bias, but from the exciting influences of even such 
 a war as now disturbs the country.
 
 206 THE TRIAL OF THE CONSTITUTION. 
 
 The question is, which department of the Government has 
 the authority to suspend the privilege of the writ of Habeas 
 Corpus ? The Constitution does not say. We must, there- 
 fore, be guided to a conclusion by some rule of. interpretation. 
 According to the principles above stated, we should inquire 
 first, what is the law of England ? secondly, what alteration 
 in it has the Constitution expressly or impliedly made ? and 
 thirdly, if there be still room for doubt, what ought now to be 
 established by precedent as the law for this country in the 
 future ? 
 
 Freedom is the birthright of Englishmen, because the love 
 of it is an essential, inherent characteristic of their race and 
 of theirs only. Out of this attribute of the Saxon nature 
 grew the liberty of the English Constitution. Its free prin- 
 ciples existed before the Norman conquest. Magna Charta, 
 the keystone of English liberty, was merely an assertion of 
 ancient but violated rights. During the subsequent struggle 
 under the Norman kings, the confirmation of the Great Char- 
 ter was the trophy of victory gained by the people over royal 
 power and the price of every concession made by them to it. 
 The laws of the Saxon Edward the Confessor, the civil rights 
 of the people before Norman rule, lived in the heart of the 
 nation, and the Great Charter did not create or bestow them, 
 but declared them. The Petition of Right in 1(320, the Bill 
 of Ria-hts in 1688, were notliins more than solemn and formal 
 confirmations of the principles of Magna Charta, violated 
 by a tyrannical and perfidious king, and the declaration of 
 rights, which was the foundation of the Bill enacted by Par- 
 liament on the accession of William and Mary, concludes with 
 these words : " And they (the Lords and Commons) do claim, 
 demand and insist upon all and singular the premises, as their 
 undoubted rights and liberties:" and the act of Parliament 
 recoirnizes " all the rights and liberties confirmed in the said 
 declarations to be the true, ancient and indubitable rights of 
 the people of this Kingdom." Thus says Hallam :* " The 
 
 * 3 Constitutional History, 140. 1 Blackstone's Couini., 128.
 
 EXECUTIVE POWEK. 207 
 
 Commons wisely resolved to go to the root of the nation's 
 grievances, and to show their new sovereign that he was 
 raised to the throne for the sake of those liberties, by violat- 
 ing which his predecessor had forfeited it ; . . . and thus the 
 declaration of rights was indissolubly connected with the re- 
 volution settlement as its motives and condition." 
 
 The Act of 31 Charles II, called the Habeas Corpus Act, 
 created no new rights. It afforded a more perfect protection 
 to those already existing, and provided a prompt and effective 
 remedy for their violation. It did not even create the writ of 
 Habeas Corpus, but enlarged its effect. Its true character is 
 described clearly and concisely by the sober and truth-telling 
 historian of the English Constitution: "The essential clauses 
 of Magna Charta are those which protect the personal liberty 
 and property of all freemen by giving security from arbitrary 
 imprisonment and arbitrary spoliation." "No freeman," says 
 the 29th chapter of Henry Ill's Charter, which, on the exist- 
 ing law, I quote in preference to that of John, the variations 
 being not very material, " shall be taken or imprisoned, or be 
 disseised of his freehold or his liberties or free customs, or be 
 outlawed or exiled, or any otherwise destroyed ; nor will we 
 pass upon him nor send upon him, but by laAvful judgment of 
 his peers or by the law of the land. We will sell to no man, 
 we will not deny or delay to any man, justice or right." " It 
 is obvious that these words, interpreted by any honest court 
 of law, convey an ample security for the two main rights of 
 civil society. From the era, therefore, of King John's Char- 
 ter, it must have been a clear principle of our Constitution that 
 no man can be detained in prison without trial. Whether the 
 courts of justice framed the Avrit of Habeas Corpus in confor- 
 mity to the spirit of this clause, or found it already in their re- 
 gister, it became from that era the right of every subject to 
 demand it. That writ, rendered more actively remedial by 
 the statute of Charles II, but founded upon the broad basis of 
 Magna Oharta, is the principal bulwark of English liberty; 
 and if ever temforary circumstances or the doubtful plea of po- 
 litical necessity shall lead men to look on its denial ivith apathy^
 
 208 THE TRIAL OF THE CONSTITUTIOX. 
 
 the most distinguisldng feature of our Constitution ivill he 
 effaced.'''^ 
 
 Let us now inquire -what -was tlic English law of personal 
 liberty Avliitli must have been in the minds and memories of 
 the men who made our Constitution. English history was 
 theirs also. They inherited Magna Charta, the Petition of 
 Right, the Bill of Rights, and the common law, and lived 
 under them as colonists. They were not ignorant of the he- 
 roic struggles, through eight centuries of growth and progress, 
 by which these bulwarks of freedom had been built up by their 
 ancestors. It is reasonable to suppose that they would adopt 
 what they could of principles thus sanctified by the Avisdom, 
 valor and blood of their own race, and confirmed also by expe- 
 rience and fortunate results. Personal liberty was a right, 
 born of the instinct of the Saxon. It was infringed by the 
 rapacity and tyranny of Norman, that is to say of executive, 
 power. The victory achieved b}" the people was to subject 
 this power to the restraint of the Legislature, and the writ of 
 Habeas Corpus was contrived as a fit instrument to apply that 
 restraint. The law of England, therefore, is, that every man 
 imprisoned by any authority, shall be entitled to have the 
 cause of his commitment made known to a civil magistrate, 
 and shall be bailed, tried or discharged. 
 
 It is obvious that this general law must of necessity be sub- 
 ject to certain exceptions. It is intended to protect civil 
 rights, not to open them to attack, or to disarm the Govern- 
 ment in the defence of its own existence against rebellion or 
 treason, or of the nation against foreign enemies. Sedition or 
 war may make it essential to the public safety that the per- 
 sonal liberty of individuals be for a time interfered with, in 
 order that the rights of all may be preserved in the future. 
 The English law intended to prevent the abuse of Executive 
 power, not to trammel the just and necessary exercise of it. 
 The statute of 31 Charles II is an Act of Parliament. It may 
 therefore be repealed or suspended by Parliament, for the 
 English Constitution recognizes no authority superior to Par- 
 
 * 2 Ilallum's Middle Ages, 41.
 
 EXECUTIVE POWER. 209 
 
 Hament, which embodies and represents the whole power of 
 the people. The theory is that Parliament is omnipotent, and 
 that theory is underlaid by the great body of ancient inherited 
 rights and liberties, which it is not presumed that the repre- 
 sentatives of the nation will ever disregard. They never can, 
 until Englishmen change their nature, forget their traditions, 
 and abandon their customs. No formal enactment or Avritten 
 constitution made by a convention can be stronger than these 
 habits and customs, or more clearly defined, and therefore 
 none could add to the security of the people. It may indeed 
 be said that the Constitution of England is whatever Parlia- 
 ment chooses to make it ; but it is safe so long as, by the laws 
 of man's nature. Parliament cannot but choose to preserve it 
 such as it is. 
 
 The power of discretionary arrest had been abused by the 
 Crown. The public safety was made the pretext to cover the 
 gratification of the selfish passions of the Monarch. Such is 
 the natural, universal tendency of arbitrary and irresponsible 
 power in the hands of an individual. The genius of the Eng- 
 lish people never accepted this power as a part of the Royal 
 prerogative. They protested against it from time to time, 
 through many centuries, as a violation of their ancient laws 
 and customs. They made war upon it. At length they re- 
 strained it by the Habeas Corpus Act, and established, both 
 practically and theoretically, the law of the land, that no man 
 shall be deprived of his liberty by the Executive power of the 
 Government without the assent and concurrence of the Legis- 
 lative power ; thus placing alike the freedom of the citizen and 
 the safety of the nation where they ought to be placed, — under 
 the protecting care of the tvliole Government. The law and 
 the reason of it are stated with elegance and clearness by 
 Blackstone. 
 
 " To bereave a man of his life, or by violence to confiscate 
 his estate, without accusation or trial, would be so gross and 
 notorious an act of despotism as must at once convey the alarm 
 of tyranny through the whole Kingdom ; but confinement of 
 the person by secretly bringing him to gaol, where his suflFer- 
 
 14
 
 210 THE TRIAL OF THE CONSTITUTION. 
 
 ings are unknown or forgotten, is a less public, a less shock- 
 ing, and therefore a more dangerous engine of arbitrary 
 government. And yet sometimes, Avlien the State is in real 
 danger, even this may be a necessary measure. But the hap- 
 piness of our Constitution is, that it is not left to the Execu- 
 tive power to determine when the danger to the State is so 
 great as to render this measure expedient ; for it is Parliament 
 only, or Legislative power, that, whenever it sees proper, can 
 authorize the Crown, by suspending the Habeas Corpus Act 
 for a short and limited time, to imprison suspected persons 
 without giving any reason for so doing, as the Senate of Rome 
 was wont to have recourse to a dictator, — a magistrate of ab- 
 solute authority, when they judged the Republic in any immi- 
 nent danger. ... In like manner this experiment ought only 
 to be tried in cases of extreme emergency ; and in these the 
 nation parts with its liberty for a while in order to preserve it 
 forever." 
 
 The public safety alone can, therefore, justify the denial of 
 the benefits of the writ of Habeas Corpus to any English sub- 
 ject, and the Legislature only can suspend the statute of 31 
 Charles II, which confers the privilege of the writ. That is 
 to say, no man can be imprisoned in England except for legal 
 cause shown or on conviction after trial, unless by the action 
 of all branches of the Government, — of the Legislature which 
 suspends the Habeas Corpus Act, of the Executive which makes 
 the arrest, and of the Judiciary also, which would deny the 
 writ after an act of Parliament suspending it. The public 
 safety is the legal care of all, and the motive and object of all 
 in violating the personal liberty of the citizen. 
 
 But it might liappen, as it has often happened in England, 
 that tlic public safety shall be menaced by imminent danger 
 when Parliament is not in session. In such a case, the only 
 branch of Government in a condition to act is the Executive, 
 whose peculiar province, indeed, is action, and to which the 
 care of the nation is primarily intrusted ; for the functions 
 of the Judiciary apply to transactions that are past, — it has 
 no spontaneous action, it does not originate or plan. For the 
 time being, therefore, the Executive represents the whole Go-
 
 EXECUTIVE POWEE. 211 
 
 vernment, whose duty it is to preserve the nation from danger; 
 and any Constitution that did not, in such cases, clothe the 
 Executive with corresponding power, would be very defective. 
 Such a Constitution could not pass through any period of peril 
 of the kind supposed, without being disregarded during the 
 crisis and altered by it, for the law of self-preservation is or- 
 ganic and vital .in all Governments. The English Constitu- 
 tion, tested as it has been by the various fortunes of stormy 
 centuries, is not without provision for every danger. 
 
 The Habeas Corpus Act can only be suspended by Parlia- 
 ment ; but in the absence of Parliament, or even when Parlia- 
 ment is in session, and the case demanded instant and secret 
 action, the Ministers of the Crown, when the public safety has, 
 in their opinion, required it, have habitually taken the respon- 
 sibility of suspending the benefits or privilege of the writ. 
 When Parliament meet, they immediately ask for a bill of in- 
 demnity, and also for a suspension of the act itself, should the 
 danger continue. The consent of Parliament is therefore re- 
 quired for any invasion of personal liberty, either before or 
 after such invasion, has always been asked since the statute 
 of 31 Charles II, and has always been granted. 
 
 So entirely is the action of the Executive under the control 
 of the Legislature, that the habit of Ministers to make arrests 
 is not even mentioned by elementary writers on the subject, 
 but the principle is broadly asserted, as in the quotation 
 already given from Blackstone, that such arrests can be made 
 only by authority of Parliament. In an edition of the Com- 
 mentaries by Christian, Archbold, and Chitty, the practice of 
 the Government is thus briefly and comprehensively stated in 
 a note to the chapter on the Councils of the King : " The Privy 
 Council, in cases of sudden emergency arising in the adminis- 
 tration of affairs of state, for which the law has made no pro- 
 vision, assume the responsibility of applying such measures as 
 they deem meet. But they do so under a heavy responsibility ; 
 for if Parliament, at its next meeting, should not approve their 
 conduct and grant them an indemnity for acting without the 
 license of law, they become liable upon a charge of misde-
 
 ■1V2 THE TRIAL OF THE CONSTITUTION. 
 
 meanor or treason, according to the circumstances of the 
 case."* 
 
 The judicial reports may perhaps furnish examples that 
 illustrate the practice of the Government, but it is unneces- 
 sary to search for them, when history and the proceedings 
 of Parliament supply abundant precedents of equal authority. 
 Macaulay, speaking generally on the subject, says : " The 
 principle that the King of England was bound to conduct the 
 administration according to law, and that, if he did anything 
 against the law, his advisers and agents were answerable, was 
 established at a very early period, as the severe judgments 
 pronounced and executed on many royal favorites sufficiently 
 prove. It is, however, certain that the rights of individuals 
 were often violated by the Plantagenets, and that the injured 
 parties were often unable to obtain redress. According to 
 law, no Englishman could be arrested or detained in confine- 
 ment, merely by the mandate of the sovereign. In fact, 
 persons obnoxious to the Government were frequently im- 
 prisoned without any other authority than the royal order. 
 . . . But it would be a a;;reat error to infer that the English 
 monarchs were, either in theory or in practice, absolute. 
 We live in a highl}^ civilized society, in which intelligence is 
 so rapidly diffused by the press and the post-office that any 
 gross act of oppression committed in any part of the island is, 
 in a few hours, discussed by millions. If an English sovereign 
 were now to immure a subject in defiance of the writ of Habeas 
 Corpus, the whole nation would be instantly electrified by the 
 news. In tlic middle ages the state of society was widely 
 different. A man might be illegally confined during many 
 months in Carlisle or Norwich, and no whisper of the trans- 
 action might reach London. . . . Nor were our ancestors 
 by any means so much alive as we are to the importance of 
 maintaining great general rules. We have been taught by 
 long experience that we cannot without danger, suffer any 
 breach of the Constitution to pass unnoticed. It is therefore 
 held that a Government" (by which is meant a ministry) 
 
 * 1 Blackstone's Coram., 232.
 
 EXECUTIVE POAVER. 213 
 
 " which unnecessarily exceeds its powers, ought to be visited 
 with severe Parliamentary censure, and that a Government 
 which, under the pressure of a great exigency and with [)ure 
 intentions, has exceeded its powers, ought, without delay, to 
 apply to Parliament for an act of indemnity. "* 
 
 By virtue of such an act, the measures of the Crown become 
 the measures of the whole Government, that is to say, of the 
 Executive and the Legislature. 
 
 The first case that occurred of a suspension of the writ of 
 Habeas Corpus as provided by the statute of Charles II, was 
 in 1689, immediately after the accession of William III. 
 The Government was scarcely established, the exiled king had 
 secured the countenance of France, and had a powerful party 
 both in Scotland and in England. Ireland was in rebellion, 
 and the new establishment threatened by dangers from within 
 and without. A conspiracy to support the pretensions of 
 James to the CroAvn was discovered, and the leaders were 
 arrested by order of William. 
 
 The case was a new one under the law, and he applied to 
 Parliament for advice in the following message : 
 
 " That his majesty hath had credible information that 
 there are several persons in and about this town that keep 
 private meetings and cabals to conspire against the Govern- 
 ment, and for the assistance of the late King James. That 
 his majesty has caused some of those persons to be appre- 
 hended and secured upon suspicion of high treason, and that 
 he thinks he may see cause to do so by others in a little time ; 
 but that his majesty is between two great difficulties in this 
 case ; for that, if he should set these persons at liberty that 
 are apprehended, he would be wanting to his own safety and 
 the safety of his government and people ; on the other hand, 
 if he should detain them, he is unwilling to do anything but 
 what shall be fully warranted by law, which he has so often 
 declared he will preserve ; and that, therefore, if those per- 
 sons should deliver themselves by Habeas Corpus, there would 
 be another difficulty. That his majesty is likewise unwilling 
 
 * 1 Macaulay's England, 30.
 
 214 THE TRIAL OF THE CONSTITUTION. 
 
 that excessive bail should be taken in this case ; his majesty 
 remembering that to be one article of the grievances presented 
 to him. That ordinary bail would not be sufficient, for men 
 who carry on such designs, in hopes of succeeding, will not 
 stick at forfeiting a small sum ; and that this falling out when 
 Parliament is sitting, his majesty therefore thought fit to ask 
 the advice of this House therein, and intends to advise with 
 the Lords also."* 
 
 This message excited prompt and earnest attention, and 
 gave rise to a long debate in Parliament, interesting, because 
 it displays the bold, high spirit, the good sense, the love of 
 liberty and love of order and law which animated the counsels 
 of England at this critical period of her history, and which 
 laid broad and deep the foundations of her Constitution. The 
 King made no demand on Parliament. He simply asked 
 advice in a new and difficult emergency. He Avas met in the 
 same spirit by Parliament, and the discussion that followed 
 shows an anxious desire to arrive at safe and prudent con- 
 clusions. 
 
 A member proposed to introduce " a short bill, for two or three 
 months, to enable the King to commit such persons as he shall 
 have cause to suspect, without the benefit of Habeas Corpus." 
 This was not granted without much hesitation, for the Habeas 
 Corpus was described as "the general security of all sub- 
 jects," — not to be trenched upon except imder the stress of 
 urgent necessity. Plow to reconcile a just regard to the laAv 
 and to personal liberty with the public safety, was the question 
 then in England, as it is now with us. As one member said, 
 " It is of absolute necessity that those persons be secured for 
 tampering with the Government, and of as absolute necessity 
 that the law be secured too." After much sober and serious 
 deliberation, it was first " Resolved, that the humble thanks of 
 the House be returned to his majesty for his most gracious 
 message in desiring the advice of this House." And thou it 
 was " Ordered, that a committee be appointed for drawing up 
 a temporary bill for empowering his majesty to apprehend and 
 
 *5 Cobbett's PaHiaineiitary Debates, 153.
 
 EXECUTIVE POWER. 215 
 
 detain all such persons as he shall have just cause to suspect 
 are conspiring against the Government." An amendment 
 was offered, limiting the operation of the bill to a particidar 
 time, which was agreed to ; and another, " that it be never 
 drawn into precedent or example hereafter," ivliich was re- 
 jected. 
 
 It has remained a precedent and settled the law, and when- 
 ever the writ has since been suspended, it has been by a bill 
 in the language and form of the one thus enacted. When 
 the time limited for its operation had elapsed, the danger still 
 existing, application was made for its renewal, by Mr. Hamp- 
 den, who said : " What is the meaning of all the intelligence 
 that comes out of the country of ill-affections to the Govern- 
 ment? And have we not a body "here who are mutinying 
 against the Government ? ... Dangerous persons will be 
 delivered out of prison, if this bill prevent it not, and they 
 may act to the subversion of the Government. ... If the 
 people conspire, the King cannot keep them in prison, since 
 they must come out by Habeas Corpus, if you prevent it not 
 by this bill. We are in. ivar, and if tve 7nake only use of that 
 remedy as if we tvere in full peace, you may be destroyed loitli- 
 out remedy.'' Another member said: "Let the danger be 
 ever so gi-eat, I would not dispense with the Habeas Corpus, 
 hut hy Parliament. If dispensed ivith hy the Executive 
 power, it is fatal ahoays ; hy the Legislative power, there is 
 no danger.''* 
 
 It was precisely this supremacy of the Legislative power 
 which was established by the revolution which placed William 
 III on the throne, and by the above precedent was the law 
 of England settled. It has never since been doubted or 
 doubtful. It is needless to cite other examples. They are 
 all of the same character. The Habeas Corpus has been fre- 
 quently suspended in English history, whenever the Govern- 
 ment has been threatened by conspiracy, sedition or treason. 
 It has been suspended by Ministers during the recess of Par- 
 liament, or if necessary, whilst it was sitting and without its 
 
 * 5 Cobbett's Parliamentary Debates, 267.
 
 216 THE TKIAL OF THE CONSTITUTION. 
 
 kno-\vledge, and also by its previous consent, but in all cases 
 the forms of procedure have been the same as those established 
 by the first case ; in all, the consent of Parliament has been 
 asked and given, and in no case has its supreme authority over 
 the subject been doubted or ([uestioncd. 
 
 What, then, is the whole hnv of England in reference to the 
 two vital points of personal liberty and the public safety ? Is 
 it not that both are placed under the care of the whole Go- 
 vernment, each branch acting m its appropriate sphere and 
 manner ; that the Executive is subordinate to the Legislature, 
 and cannot act without its consent, expressly given before or 
 after action ; that the Executive represents the whole Govern- 
 ment in the absence of the Legislature, and may, to protect 
 the public safety, arrest and detain individuals at its discre- 
 tion, subject to the subsequent approval of Parliament ? If 
 such be the law, it may be briefly and comprehensively 
 stated in these words, which are the words of our Constitu- 
 tion : "The privilege of the writ of Habeas Corpus shall not 
 be suspended unless the public safety may require it." Im- 
 plied power is thus given to suspend the writ, but to whom is it 
 given ? To the whole Government. The words can have no 
 other meaning, since no department is expressly or impliedly 
 named. To suspend the Habeas Corpus Act is to suspend the 
 privilege of the writ, but this can only be done by the Legis- 
 lature, and if such were the language of the law, tlie power to 
 suspend would be confined to the Legislature. To deny the 
 benefit of the writ in a particular case, is to suspend the privi- 
 lege of the writ, and this is an Executive act. The language 
 used, therefore, describes the functions of each, because the 
 suspension of the statute by the Legislature can have no other 
 object or effect than the suspension of the privilege of the 
 writ, Avhich effect is also produced by the action of the Execu- 
 tive in making the arrest. 
 
 If the definition above given may be regarded as a correct 
 statement of the law of England, it is very clear that those who 
 made our Constitution intended to adopt that law except as 
 they expressly altered it. They simply used the words " pri- 
 vilege of the Avrit of Habeas Corpus." Those words could
 
 EXECUTIVE POWER. 217 
 
 have but one signification to English colonists. Tlicy mean 
 the rights of personal liberty inherited by the English people. 
 Evidently, by using those words simply and without qualifica- 
 tion, our ancestors meant to adopt the Avliole English law as 
 settled by centuries of English history and the most interest- 
 ing events of those centuries, with the exception expressly 
 named in the Constitution. That exception limits the autho- 
 rity of the Government to suspend the privilege of the writ 
 to the two cases of rebellion and invasion, when the public 
 safety may require it. Had they meant any other alteration 
 of the law, they would have said so. Had they meant to con- 
 fine the power of suspension either to the Legislature or to the 
 Executive, they would have said so. When the subject was 
 under debate, one member proposed that the privilege of the 
 writ should never be suspended at all, under any circum- 
 stances. Another, that the benefit of the writ should be sus- 
 pended only by the Legislature. Finally, after a discussion 
 which seems not to have been very fully reported, the lan- 
 guage of the Constitution was agreed upon, and if the words 
 italicised below had been inserted, the intention and meaning 
 of the Convention would have been only more fully ex- 
 pressed. " The privilege of the writ of Habeas Corpus, as 
 enjoyed by our ancestors and settled by the law and practice of 
 JEngland, shall not be suspended, unless when, in cases of re- 
 bellion or invasion, the public safety may require it." 
 
 But it may be said and has been said, that the American is 
 a very different thing from the English Executive, and in- 
 tended to be diff'erent in its structure and action. Rank, title 
 and the hereditary element were discarded. The President 
 derives his power from the people ; the English Minister is 
 appointed by the Crown. The President holds office during a 
 specified period ; the English Minister during the pleasure of 
 Parliament. Thence it is argued that the President is inde- 
 pendent of Congress, and possesses co-ordinate authority, re- 
 sponsible for its exercise only to the people by Avhom he was
 
 218 THE TRIAL OF THE CONSTITUTION. 
 
 elected. It is his duty to take care that the laws are faith- 
 fully executed, and to preserve, protect and defend the Consti- 
 tution. It is primarily and chiefly his duty to secure the public 
 safety in cases of rebellion or invasion. Why may he not act 
 independently of Congress in the performance of these duties, 
 and is not his authority coextensive with theirs ? Should it be 
 necessary to suspend the Writ of Habeas Corpus, in cases of 
 rebellion or invasion, why should he wait for or ask at all the 
 sanction of Congress ? Nay, is it not plain that he alone has 
 the power ? The Constitution implies an immediate grant of 
 power to somebody on the happening of certain events, and 
 provides for no intervening step or form between their occur- 
 rence and the exercise of the power. Its language refers to 
 Executive, not to Legislative action. It does not say the 
 Habeas Corpus Act or the Writ itself may be suspended, 
 which would have brought it exclusively within the sphere of 
 Congress, but it says " the privilege of the Writ," an object 
 which the Executive power is sufficient to accomplish. 
 
 Such are the arguments by which an attempt is made to 
 show that our ancestors intended to give to their new Execu- 
 tive, powers Avhich their ancestors, in contests which resounded 
 through centuries of English history, succeeded in wresting 
 from their kings ; prerogatives claimed by the Plantagenets, 
 Tudors and Stuarts, but always denied by the English people, 
 were revived by the framers of our Constitution, and the 
 reason why this Avas done, according to one eminent authority, 
 was because the President is so strong ; and according to 
 another, because lie is so weak. 
 
 Washington and his companions, not ignorant of the annals 
 of their race, had probably no such intentions. Tlie language 
 they employed, I have endeavored to show, was consistent with 
 their desire to adopt the law of England in reference to the 
 Writ of Habeas Corpus, except where they expressly altered 
 it, and whatever changes in the Executive department they 
 meant to make, or were obliged to make, every presumption is 
 against their intending to clothe it with greater power than 
 that of tlie English Executive, more especially with the irre- 
 sponsible power of secret and discretionary imprisonment.
 
 EXECUTIVE POWER. 219 
 
 Power must be given to every Government. If restricted 
 beyond a certain point it ceases to have power. A Govern- 
 ment is like an individual. It reflects, it judges, it wills. 
 Like an individual also, it should be a unit, and all its facul- 
 ties should act harmoniously together. Power is the attribute 
 of the whole, and is divided into power thinking, deliberating 
 and acting. The Legislature thinks and originates, the Judi- 
 ciary applies to cases as they arise the laws made by the 
 Legislature, the Executive executes them by action, by deeds. 
 As thought is superior to action, the Legislature is the highest 
 power. Therefore in every free Government, the Executive 
 is subordinate to the Legislature. In every Government also, 
 except the rudest, the three departments are separated, and 
 yet not so entirely divided that each does not in some degree 
 participate in the powers of the others, for such division and 
 combination are necessary to produce united action. 
 
 In our Constitution, the distribution of power is for the 
 most part the same as in its British model. Where that is 
 departed from, the change is expressly stated, and restrains 
 rather than enlarges Executive authority. The English Execu- 
 tive may declare war, but depends on the Legislature for sup- 
 plies to carry it on. With us Congress alone can declare war. 
 The English Executive may make treaties ; ours can make 
 them only Avith the concurrence of two-thirds of the Senate. 
 The English Executive appoints all subordinate officers ; the 
 President nominates them to the Senate and appoints them by 
 and with its advice and consent. The English Executive has 
 an absolute veto on the acts of the Legislature ; the President 
 a conditional one. It is the duty of the English Executive to 
 enforce the execution of the laws, to suppress insurrection, 
 and to repel invasion. These duties appertain to the Execu- 
 tive officer in every Government, chiefly and at the beginning 
 of resistance or danger. To this end he may employ military 
 force, but in England that force is under the control of Par- 
 liaiiient. In order that it may remain so, by a usage that 
 has become law, the Mutiny Bill, by which the army is organ- 
 ized, is limited in its operation to one year, and is formally 
 re-enacted at every session. The execution of the laws and
 
 220 THE TRIAL OF THE CONSTITUTION. 
 
 resistance to rebellion or invasion, may also make it neces- 
 sary to arrest and imprison rebels, traitors and persons sus- 
 pected of seditious designs. In England, the Executive can- 
 not, as we have shown above, exercise this power without the 
 consent of the Legislature, given before or after the ai-rest. 
 So that in these essential functions of Executive authority, 
 the enforcement of the laws and the defence of the country 
 from invasion, an English Monarch is by the Constitution of 
 England, controlled by the Legislative power, and must be 
 sustained by it. 
 
 We find similar provisions in our Constitution, in relation 
 to the use of military force. Congress, it is declared, shall 
 have power to raise and support armies, but no appropriation 
 of money to that use shall be for a longer term than two years. 
 To provide and maintain a navy ; to make rules for the go- 
 vernment of the land and naval forces ; to provide for calling 
 forth, organizing, arming and disciplining the militia ; " and 
 the President shall be Commander-in-chief of the arni}^ and 
 navy, and of the militia of the several States, when called" 
 (by Congress, as aforesaid,) "into the actual service of the 
 United States." We here find the English law and practice 
 codified in our Constitution. By that law Executive power, 
 even in its primary and essential attributes, is subjected to 
 legislative power. By our Constitution the subordination of 
 Executive authority to the Legislature, is made even more 
 complete than in the English model which was before the minds 
 of the Convention. It is, therefore, reasonable to suppose, 
 that in a matter so vital as personal liberty, and about which 
 the American people were so sensitive, the founders of 
 our Government would not intentionally depart from the Eng- 
 lish system, which, in other respects they copied so closely, or 
 that if they meant to depart from it, they would have expressly 
 said so. It cannot be implied that they intended to confer 
 uj)on tlie Executive Magistrate a power so dangerous, so liable 
 to abuse, as that of arbitrary and secret imprisonment, to be 
 exercised without the knowledge or consent, or even against 
 the will and protest of the Legislature, a power which it had 
 cost the English people five centuries of effort to take from
 
 EXECUTIVE P GAVE 11. 221 
 
 their kings. To this extent is authority now claimed for the 
 President, not by himself, but bv eminent jurists, whose names 
 have just influence on public opinion. But not in the lan- 
 guage of the Constitution, in reference to the writ of Habeas 
 Corpus, nor in the provisions that confer and limit Executive 
 powder, nor in the analogy between the British Constitution 
 and our own, is such a claim to be found. Neither is it 
 supported by judicial or other authority, subsequent or 
 contemporaneous. 
 
 Mr. Jefferson and Judge Marshall, who played a distinguished 
 part in public affairs during the Revolutionary period, Avere 
 doubtless well informed as to what at that time Avas considered 
 law, on a subject so important as the right of personal liberty, 
 and it is fair to presume that what they thought, was also the 
 opinion of the members of the Convention. 
 
 In 1807, Aaron Burr formed a conspiracy to destroy the 
 Union. It never reached the point of forcible rebellion, but 
 it was feared that it might become formidable in the Southwest, 
 and at one period the danger of open revolt w^as considered 
 serious. Some of Burr's adherents were discovered and placed 
 under arrest in New Orleans, by Colonel Wilkinson. His 
 conduct was approved by Mr. Jefferson, who was then Presi- 
 dent, and at his instance a bill was brought into Congress to 
 suspend the writ. Congress being then in session. The bill 
 passed the Senate unanimousl}'', but was rejected by the House, 
 only because news arrived, after the action of the Senate, that 
 all cause for alarm had passed away. Mr. Jefferson in that 
 case followed the English practice, and so did Congress. It 
 is clearly to be inferred from all the surrounding circumstances, 
 and from his conduct, that had Congress not been in session 
 he would, had the occasion required it, still have followed the 
 English practice, and commanded the arrests to be made, for 
 he approved of Colonel Wilkinson's act. 
 
 The opinion of Chief Justice Marshall on the subject was 
 given in the case of Ex parte Bolman, 4th Cranch. That
 
 222 THE TRIAL OF THE CONSTITUTION. 
 
 opinion may be considered by lawyers a dictum, because the 
 precise point to which it relates was not in controversy, and 
 therefore it is not, technical]}^ speaking, authority. But better 
 or higher evidence of the sentiments of the statesmen contem- 
 poraneous with the formation of the Constitution, and there- 
 fore of those who made it, than the opinion of Judge Marshall, 
 himself one of the founders of the nation, there cannot be. If 
 any man knew how much English law our fathers intended to 
 adopt, and how much to reject, he knew. He was thoroughly 
 imbued with the best and wisest spirit of the times, and for- 
 tunately his long life enabled him, by the light of those times, 
 to settle many difficult and important questions of constitu- 
 tional law. In reference to the writ of Habeas Corpus he 
 says : " If at any time the public safety should require the 
 suspension of the power vested by this act (the Judiciary Act 
 of 1789) in the courts of the United States, it is for the Legis- 
 lature to say so. That question depends on political con- 
 siderations, on which the Legislature are to decide. Until 
 the legislative will be expressed, this Court can only see its 
 duty and obey the laws." 
 
 We may infer from this, that in the opinion of the Chief 
 Justice the authority to suspend the privilege of the writ, 
 though an Executive act, does not belong exclusively to the 
 President, because the Legislature alone can suspend the 
 power of the courts to issue the writ. We may infer also, 
 that the charge of the public safety is not confided exclusively 
 or chiefly to the Executive. 
 
 What the Chief Justice would have said had the question 
 been before him, as it recently was before his successor, Judge 
 Taney, whether, during the recess of the Legislature, in the 
 midst of a rebellion which threatened with extreme and immi- 
 nent danger the national capital and the existence of the 
 Government, he would not have thought the President justi- 
 fied in "suspending the privilege of the writ" for a time and 
 on his own responsibility, subject to the subsequent approval 
 of Congress, we have no means of knowing. Probably, as he 
 had been an English subject, the uniform English practice on 
 such occasions, as well as the necessity of the case, would
 
 EXECUTIVE POWER. 223 
 
 have influenced his judgment, and he wouhl have decided that 
 such legishitive sanction was retrospective in its operation, 
 and that by it the act of the Executive became the act of the 
 whole Government. 
 
 Something, also, may be inferred as to his opinion from the 
 conduct of his friend General Washington, and of Congress 
 in the War of the Revolution. At that time there was no 
 national Executive, — Congress, which consisted of delegates 
 from the States, acting virtually both* as Legislature and 
 Executive, It was a period of war, and the public safety 
 required that persons suspected of treasonable designs and 
 sympathies should be arrested. Many were, for this reason, 
 imprisoned by the Executive power of the States, acting at 
 the suggestion of Congress, and with the approbation of 
 Washington ; and this was done either before or after an act 
 of the State Legislatures suspending the writ of Habeas Cor- 
 pus, thus following the law and custom of England. A case 
 of this sort occurred in this city in 1777. Some twenty gen- 
 tlemen, of high respectability, were arrested by order of the 
 Supreme Executive Council of this State, at the instance of 
 Congress, banished to a town in Virginia, and there detained. 
 They were not treated as criminals, but with consideration 
 and kindness. Those who chose to declare their allegiance 
 to the Government were released, and all were permitted to 
 return to their homes when it was thought they could no 
 longer be dangerous. 
 
 The following extracts from the Journal of Congress, show 
 the opinion of its members on the law at that time. Many 
 of them were also afterwards members of the Constitutional 
 Convention. 
 
 JOURNAL OF CONGRESS, AUGUST AND SEPTEMBER, 1777. 
 
 "Whereas, the States of Pennsylvania and Delaware are 
 threatened with immediate invasion from a powerful army, 
 who have already landed at the head of Chesapeake Bay. 
 And whereas, principles of policy and of self-preservation 
 require that all persons who may be reasonably suspected of
 
 224 THE TRIAL OF THE CONSTITUTION. 
 
 aidino- or abetting the cause of the enemy may be prevented 
 from pursuing measures injurious to the public weal : 
 
 ^'Resolved, That the Executive authority of the States of 
 Pennsylvania and Delaware be requested to cause all persons 
 within their respective States, notoriously disaffected, forth- 
 with to be apprehended, disarmed and secured, till such time 
 as the respective States think they can be released without 
 injury to the common cause. 
 
 ^'■Resolved, That it be recommended to the Supreme Exe- 
 cutive Council of the State of Pennsylvania, to cause a dili- 
 gent search to be made in the houses of all the inhabitants of 
 the City of Philadelphia, who have not manifested their attach- 
 ment to the American cause, for firearms, swords and bayo- 
 nets ; that the owners of the arms be paid for them at an 
 appraised value, and that they be delivered to such of the 
 militia of the State of Pennsylvania who are at present un- 
 armed and have been called into the field. 
 
 " Resolved^ That it be recommended to the Executive 
 powers of the respective States, forthwith to apprehend and 
 secure all persons who have, in their general conduct and con- 
 versation, evinced a disposition inimical to the cause of Ame- 
 rica, and that the persons so seized be confined in such places 
 and treated in such manner as shall be consistent with their 
 respective characters and the security of their persons. 
 
 " Resolved, That persons of like character, and in emergen- 
 cies equal to the present, when the enemy is at our door, have 
 in other States been arrested and secured upon sustpicions 
 arising from their general behavior and refusal to acknowledge 
 their allegiance to the State of Avhich they were the proper 
 subjects, and that such proceedings may be abundantly justi- 
 fied by the conduct of the freest nations and the authority of 
 the moBt judicious civilians." * 
 
 These arrests were made with the knowledge and approba- 
 tion of Washington. A writ of Habeas Corpus was issued at 
 the instance of the prisoners, but it Avas disregarded by the 
 officer in charge of them, and soon afterwards, September 
 IGth, 1777, the Legislature passed a bill indemnifying the
 
 EXECUTIVE POWER. 225 
 
 Executive Council and suspending tlie writ of Habeas Corpus. 
 This bill, as it fully accords with the English law, and is con- 
 clusive proof of what was regarded as the law of the Colonies 
 at the time of the Revolution, is worth quoting in full. 
 
 "An act to empower the Supreme Executive Council of this 
 Commonwealth to provide for the security thereof in special 
 cases, where no provision is already made by law. 
 
 " Whereas, the preservation of this State, and of all its mem- 
 bers, and of the army acting in support thereof at the time of 
 a hostile invasion, may require the immediate interposition of 
 the Supreme Executive Council, Avhen the judicial powers of 
 the Government cannot, in the ordinary course of law, suffi- 
 ciently provide for its security. 
 
 "And whereas, for this important purpose the Supreme Exe- 
 cutive Council of this Commonwealth have lately, at the recom- 
 mendation of Congress, taken up several persons who have re- 
 fused to give to the State the common assurance of their fidelity 
 and peaceable behavior, as required by law, and it is appre- 
 hended that there are still more such persons among us who 
 cannot, at this juncture, be safely trusted with their freedom 
 without giving proper security to the public. 
 
 "Be it therefore enacted, and it is hereby enacted by the 
 representatives of the freemen of the Commonwealth of Penn- 
 sylvania, in General Assembly met, and by the authority of the 
 same, That it may and shall be lawful for the President or Vice- 
 President, and the members of the Supreme Executive Council 
 of this State, or any two of them, either upon the recommenda- 
 tion of Congress or at the requisition of the Commander-in- 
 chief of the army, or the commander of a division or corps in 
 the same, or upon the information of any credible subject of 
 this or any other of the United States, to arrest any person 
 or persons within this Commonwealth who shall be suspected, 
 from any of his or her acts, writings, speeches, conversations, 
 travels, or other behavior, to be disaffected to the community 
 of this or all or any of the United States of America, or to be 
 an harbinger of the common enemy who is at our gates, or to 
 give mediate or immediate intelligence and Avarning to their 
 commanders by letters, messengers or tokens, or by discourag- 
 
 15
 
 226 THE TRIAL OF THE CONSTITUTION, 
 
 ing people from talcinr) up arms for the defence of the country, 
 or spreading false news, or doing any other thing to subvert 
 the good order and regulations Avhich are or may be pursued 
 for the safety of the country, and to seize and examine such 
 papers in their possession as shall in any wise aflfect the public; 
 and, the same persons being arrested, to confine and remove 
 them to any distant place, where it Avill be out of their power 
 to disturb the peace and safety of the States ; or to tender to 
 them the oath or affirmation of allegiance or fidelity to the 
 State, as directed by law, and, upon taking or subscribing the 
 same, to enlarge them, or to demand and take such other and 
 further security and assurance from them as the said President 
 or Vice-President and Council, or any two of them, in their 
 discretion shall think proper, or as the particular circumstances 
 of the case may require. 
 
 "And be it further enacted, by the authority aforesaid. That 
 the President, Vice-President, and" other members of the Su- 
 preme Executive Council of this CommonAvealth, and all per- 
 sons acting by their special command in the premises, shall be 
 and are hereby fully indemnified and saved harmless from all 
 process, suits and actions that shall or may be hereafter sued, 
 commenced, prosecuted or brought against them or any or 
 either of them, for or in respect of any of their orders or pro- 
 ceedings heretofore issued and had upon the recommendation 
 of Congress, or which they shall hereafter issue and have by 
 virtue of this act. xA.nd that no judge or officer of the Supreme 
 Court or an}'^ inferior court within this Commonwealth shall 
 issue or allow of any writ of Habeas Corpus, or other remedial 
 writ, to obstruct the proceedings of the said Executive Council 
 against suspected persons in this time of imminent danger to 
 the State. 
 
 " Provided always, and it is hereby further enacted by the 
 authority aforesaid, That this act shall be in force to the end 
 of the first sitting of the next General Assembly of this Com- 
 monwealth, and no lono;er. 
 
 " Enacted into a law the sixteenth day of September, in the 
 year of our Lord one thousand seven hundred and seventy- 
 seven."
 
 EXECUTIVE POWER. 227 
 
 These arrests were not made by the Federal Government, 
 because that Government, before the adoption of the Consti- 
 tution, coukl not act upon individuals, but exerted its power 
 by and through the Governments of the States. But Con- 
 gress, in recommending the measure, dechired that " such 
 proceedings may be abundantly justified by the conduct of the 
 freest nations and the authority of the most judicious civilians." 
 It is reasonable to infer that the law and practice which these 
 men and their associates and contemporaries thus commended, 
 they would adopt and establish when they undertook to make 
 a Constitution for a new nation founded by their counsels and 
 valor, and that any deviation from the old and cherished cus- 
 tom would be expressly provided for, and not left in doubt. 
 
 Mr. Hamilton was another leading spirit of the Revolution 
 who left the impress of his fine intellect upon the history of 
 the period. He was united with Washington and Marshall by 
 the sympathy of great souls engaged in a noble cause, and 
 was, with them, a chief co-founder of the nation. He was a 
 member of the Continental Congress during the war, and also 
 of the Convention that framed the Constitution. In the latter 
 he played a very conspicuous part. No opinion of his on the 
 Habeas Corpus clause in the Constitution is perhaps on record, 
 but we may infer what he would have thought of the authority 
 of the President to suspend the privilege of the writ, during 
 the recess of Congress, from the reason that he gives for vest- 
 ing in the President the pardoning poAver, even for the crime 
 of treason. " The principal argument," he says, "for repos- 
 ing the power of pardon, in this case, in the Chief Magistrate, 
 is this : in seasons of insurrections or rebellion, there are often 
 critical moments when a well-timed offer of pardon to the in- 
 surgents or rebels may restore the tran(|uillity of the Com- 
 monwealth, and which, if suffered to pass unimproved, it may 
 never be afterwards possible to recall. The dilatory process of 
 convening the Legislature or one of its branches, for the pur- 
 pose of obtaining its sanction, would frequently be the occa- 
 sion of letting slip the golden opportunity. The loss of a week, 
 a day, an hour, may sometimes be fatal." 
 
 This reason applies far more strongly to the power of the
 
 228 THE TRIAL OT THE CONSTITUTION. 
 
 Executive, in the absence of the Legislature, to arrest con- 
 spirators and traitors. It is a measure much more forcible 
 and effectual than the offer of a pardon. Prompt action may 
 often break up a plot and defeat its object, when on the eve 
 of execution. The delay of a day or an hour might de- 
 cide the fate of a government, by giving time to able leaders 
 to concentrate forces and make an attack, which might convert 
 a rebellion into a revolution. English history is full of such 
 cases, and so is all history. With such precedents in his 
 memory, with the law and custom of England and of the Colo- 
 nies, and the practice of Congress during the war of the Revo- 
 lution before his mind, it is impossible to believe that Mr. 
 Hamilton could have written the above argument and not have 
 been willing to apply it to a case so analogous as the power of 
 the President to suspend the writ of Habeas Corpus during the 
 recess of Congress. As that power, however, may be abused 
 and lead to severity, and the pardoning power only to mercy, 
 as the first infringes and the other respects human liberty, the 
 former is wisely placed ultimately under the restraint of the 
 Legislature, whilst the latter is left wholly to Executive 
 discretion. 
 
 These instances are not cited as legal authority in a techni- 
 cal sense, but as evidence of what must have been the opinions 
 of Washington, Marshall, Hamilton and other eminent men, 
 members of the Continental Congress and founders of the Go- 
 vernment. It is inconceivable that they intended to invest 
 the President with a prerogative, which their ancestors in many 
 bloody and heroic struggles wrested from feudal kings. It is 
 also inconceivable that the Convention intended to disarm the 
 President at the very moment when he alone could act for the 
 defence of the public safety, thus inviting attack by providing 
 a period of weakness. But it is conceivable, considering the 
 excited feelings of the people and of the time in favor of 
 liberty, that Avhilst the Convention adopted the English law 
 as their model, they should alter it, as they expressly did, by 
 limiting at once the power of the President and of Congress. 
 Guided by these examples, by history, and by the language of 
 the Constitution, could not the law, English and American, be
 
 EXECUTIVE POWER. 229 
 
 thus stated: "The privilege of the writ of Habens Corpus 
 may be suspended by the Executive power, by and with the 
 consent of the Legislature, given before or after such suspen- 
 sion, in England when the public safety may require it ; in 
 America, when in cases of rebellion or invasion, the public 
 safety may require it." 
 
 The action of the Executive does not suspend the privilege 
 of the writ, except in the particular case of the individual 
 arrested. The benefit of the writ is a personal privilege, the 
 right of every citizen. That remains until the writ itself be 
 suspended by authority of the Legislature. It remains even 
 to the person arrested, who may still claim that the writ be 
 issued, and the cause of his commitment made known to a civil 
 magistrate. Prima facie his arrest is a wrong for which in 
 England the Ministers are personally responsible, and for 
 which he has a claim for damages. Therefore it is that Par- 
 liament passes a bill indemnifying them for Avhat, until thus 
 sanctioned by Parliament, is an illegal invasion of the liberty 
 of the subject, and the law presumes that Parliament will sanc- 
 tion the acts of Ministers, when honestly intended for the 
 public good, and will also refuse to relieve them from the 
 consequences of unjust, unnecessary or oppressive severity. 
 The English practice grew out of overruling necessity, and 
 whilst it respects the principle that an act of Parliament is 
 inviolable, except by Parliament, and maintains the principle 
 of the responsibility of the Ministers of the Crown, it provides 
 also the defence of the Government and the nation. 
 
 It may be said that our Congress with its enumerated and 
 restricted powers is very different from the English Parliament, 
 which is theoretically omnipotent, and therefore that the for- 
 mer cannot divest a right of action which had accrued to an indi- 
 vidual by reason of a violation of his Yxhcvij , inima facie illegal. 
 But surely the Convention had authority in making the Con- 
 stitution to bestow power on Congress in this or any other 
 particular, and the question is, what power did they grant ? 
 The purpose of the present argument is to show that they 
 adopted the whole English law in reference to the writ of 
 Habeas Corpus, with the exception expressed in the Constitu-
 
 230 THE TRIAL OF THE CONSTITUTION. 
 
 tion, and if so, the Englisli practice •with ren;ard to hills of in- 
 demnity, in which practice is involved the great vital principle 
 of English liberty, the subordination of Executive to legisla- 
 tive authority. 
 
 It is interesting to observe how the wisdom of the English 
 law has been vindicated by the rebellion and civil Avar now 
 raging in our country. That law grew out of the stress and 
 strain of such trials, and is therefore fit to cope with them, 
 and we see it now adopted, perhaps unconsciously and unin- 
 tentionally, by the Government, notwithstanding opposing 
 opinions, simply because it suits the emergency. All the 
 danger from violence, privy conspiracy and treason, that ever 
 threatened the English nation in the worst times have assailed 
 ours in these. The life of Mr. Lincoln was menaced by a plot 
 to assassinate him as he was going to Washington to assume 
 the oflfice to which he had been elected by the people. He 
 escaped only by travelling secretly to the National Capital. 
 He there found himself in the midst of enemies. Civil war 
 had commenced. The Government had been carefully dis- 
 armed, and its enemies strengthened by his predecessor. The 
 army, the navy, every civil department, nay, even the Executive 
 mansion itself, were filled with spies and traitors, eager and 
 active to assist the rebellion, many of them every day openly 
 enlisting in its cause. 
 
 On one side of the Federal City was Virginia, disaffected, ex- 
 cited, and ripe for revolt. On the other, l^nng between Wash- 
 ington and the loyal North, was Maryland, waiting only the 
 advance of the rebels, to rise in arms for their support ; not 
 waiting indeed, but assaulting the troops of the Government 
 as they Avere marching to its defence, and destroying bridges 
 and railroads to cut off its communication with its supplies and 
 its friends. The Capitol was thus surrounded l)y hostile terri- 
 tory, Avas beleagured and threatened. Congress had adjourned, 
 with a lingering hope that peace might yet be preserved, and 
 had therefore failed to make preparation for war. The Presi-
 
 EXECUTIVE POWER. 231 
 
 dent stood alone, the representative of the Government and 
 of the nation. If he couhl not act, no one couhl. The neces- 
 sity^ was ui-gent for some power to resist and repel the rebels, 
 for had their plans succeeded, the seat of Government would 
 have fallen into their hands, and the President himself would 
 have been driven from it or put to death. 
 
 When every moment was thus fraught with danger, was he 
 to hold his hand and wait until the question could be debated 
 and settled by lawyers, whether the Executive or Legislative 
 power, under the Constitution, could suspend the Writ of 
 Habeas Corpus ? Or was he, Avhen he had seized and secured 
 a conspirator, to permit the officer who had him in custody to 
 leave his command, and obey a writ issued by a disaifected 
 judge, or any judge, that legal questions might be discussed 
 in the midst of a seditious population, or anywhere else, when 
 the crisis demanded prompt and vigorous action, and the delay 
 of an hour might be fatal ? A constitution that imposed such 
 a fetter upon authority, would violate the supreme, organic 
 law of every State, and a crisis like the one described would 
 rend it to tatters. All constitutions and all laws are meant 
 to protect the public safety, not to endanger it, and if they 
 fail, they cease to be laws, and must be disregarded when an 
 emergency arises. 
 
 Mr. Lincoln was equal to the occasion. He did — and the 
 resemblance is Avorth noting — precisely what William III did 
 under similar, but far less difficult and perilous circumstances, 
 when the fate of the nation hung on the decision of the passing 
 moment. The case was a new" one, the law was doubtful. So 
 it was in the first years of King William's reign, yet he did 
 not hesitate. As soon as Parliament assembled, he told them 
 what he had done, explained his reasons and motives, and 
 asked them to ratify his acts. Mr. Lincoln did the same 
 thing. In his Message to Congress, which in its spirit and 
 purpose is similar to that of King William's, he says : " The 
 whole of the laAvs which were required to be faithfully exe- 
 cuted, were resisted and failing of execution in nearly one- 
 third of the States. Must they be allowed to finally fail of 
 execution, even had it been perfectly clear that by the use of
 
 232 THE TRIAL OF THE CONSTITUTION. 
 
 the means necessary to their execution, some single law made 
 in such extreme regard to the citizen's liberty, that practically 
 it relieves more of the guilty than of the innocent, should, to 
 a very limited extent, be violated ? . . . Are all the laAvs 
 but one to go unexecuted, and the Government itself to go to 
 pieces, lest that one be violated ? Even in such a case, would 
 not the official oath be broken should tlie Government be 
 overthroAvn, when it was believed that disregarding the single 
 law would tend to preserve it ? But it was not believed that 
 this question was presented. It was not believed that any law 
 was violated. The provision of the Constitution that the 
 privilege of the Writ of Habeas Corpus shall not be suspended, 
 unless in cases of rebellion or invasion the public safety may 
 require it, is equivalent to a provision that such privilege may 
 be suspended, when in such cases the public safety does re- 
 quire it. It Avas decided that we have a case of rebellion, and 
 that the public safety does require the qualified suspension of 
 the privilege of the writ, which was authorized to be made. Now 
 it is insisted that Congress and not the Executive is vested with 
 this power. But the Constitution is silent as to Avhich or who is 
 to exercise the power, and as the provision is plainly made for 
 a dangerous emergency, it cannot be believed that the framers 
 of the instrument intended that in every case the danger 
 should run its course, until Congress could be called together, 
 the very assembling of which might be prevented, as was in- 
 tended in this case by the rebellion." 
 
 The native sagacity of the man, stimulated by the occasion, 
 has here discovered and pointed out the reason of the English 
 law, and he concludes by saying in the spirit of that law, that 
 " whether there shall be any legislation on the subject, and if 
 any, what, is submitted entirely to the better judgment of 
 Congiess." He did not ask in terms for a bill of indemnity, 
 because perhaps he was not thinking of himself or of the per- 
 sonal consequences of performing his duty. But he asks the 
 sanction of Congress for what he had done, as in a previous 
 paragraph, in relation to the responsibility he took in calling 
 out the militia and increasing the regular army to resist the 
 rebellion, he says : " These measures, whether strictly legal
 
 EXECUTIVE POWER. 233 
 
 or not, were ventured upon under what appeared to be a popu- 
 lar demand and a public necessit}-, trusting then as now that 
 Congress would readily ratify them. It is believed that no- 
 thing has been done beyond the constitutional competency of 
 Congress. 
 
 These few simple sentences contain the whole law of Eng- 
 land on the relation between the Executive and Legislative 
 departments of the Government, and that it has thus been un- 
 consciously expressed by Mr. Lincoln, in a state paper, writ- 
 ten under the pressure of a great danger and a great responsi- 
 bility, is a signal proof at once of the wisdom of the law and 
 of the deep root which English traditions yet hold in the 
 American mind. Mr. Lincoln is not a learned man ; he is 
 something far better, he is a wise man. It is not probable 
 that he had the English practice before his mind when he 
 wrote that message, or he would in express terms have asked 
 for a bill of indemnity. But he is not ignorant of the general 
 ■ principles of the common law, of the leading events of Eng- 
 lish history, and his reason drew from those principles and 
 events their legitimate conclusion. He has in brief words 
 declared that the Executive is subordinate to the Leg-islative 
 power ; that the Executive is, as such, charged with its share of 
 the duty of providing for the public safety, and in the absence of 
 the Legislature, with the whole of that duty, because represent- 
 ing for the time, necessarily, the whole Government ; that if, 
 in the bona fide performance of such duty, the President tran- 
 scends the limits of executive, and exercises legislative autho- 
 rity. Congress ought to ratify his acts ; and lastly, that when 
 they are thus ratified, they become in law legislative acts, 
 provided " that nothing has been done beyond the constitu- 
 tional competency of Congress." His language implies even 
 more than this. He says in eifect to the Legislature, " I have 
 exercised powers that regularly belong to you. What I did 
 was done only because you were not here, and the necessity 
 for prompt action was urgent. I ' submit ' my acts to your 
 judgment. If you approve them, make them yours." What 
 is this but to admit the right and the duty of Congress to 
 guard its own powers and to resist the usurpations of a Presi-
 
 234 THE TRIAL OF THE CONSTITUTION. 
 
 dent, by disavowal, by denunciation, by impeachment, unless 
 his conduct was justified by the occasion, and there was no 
 reason to suspect him of criminal intentions ? 
 
 It is to be remarked, moreover, that Mr. Lincoln exhibited 
 forbearance and moderation in the exercise of his authority, 
 going no further than was demanded by the necessity of the 
 case. He authorized, as he says, only a qualified suspension 
 of the privilege of the writ. The writ itself was never sus- 
 pended at all. The benefits of the writ are the privilege of 
 every citizen. These were not denied to the people or to sec- 
 tions or classes of them. One of these benefits, and perhaps 
 the most important, has not been denied even to individuals 
 arrested by order of the Government. They still have been 
 entitled to the writ, to which a return has always been made 
 by the officers in whose custody they were, stating the autho- 
 rity by which they were committed and the charges against 
 them. Publicity has thus been secured, a most important 
 protection to personal liberty. There have been no secret ar- . 
 rests, no lettres de cachet. The prisoner and his friends have 
 known, or have had the means of knowing, the ofi"ence of which 
 he was accused, and the place of his confinement. They have 
 thus had the means of obtaining his release, either by disprov- 
 ing the charges made against him or by giving satisfactory 
 assurances of future good behavior ; and the Government has 
 shown as much liberality in discharging prisoners, as caution 
 in committing them. Wliilst the courts can issue the Avrit and 
 the Government continues to obey it, so far as to return the 
 cause of the arrest and by whose authority it was made, the 
 privilege of the writ is not fully, but partially suspended, and 
 the power of discretionary imprisonment by being stripped of 
 secrecy, is disarmed of its most dangerous attribute. 
 
 It therefore appears that, whether as expounded by Mr. 
 Binney, the President has the sole and exclusive power to 
 suspend the privilege of the Avrit in cases of rebellion or in- 
 vasion ; or Avhether he may do so without the sanction of Con- 
 gress, because of his independent and co-ordinate authority, 
 as declared by the Attorney-General ; or wlietlier the exis- 
 tence of civil war puts tlie country under martial law, and
 
 EXECUTIVE POWER. 235 
 
 therefore, as some contend, clothes the President with mili- 
 tary power over the civil courts and civil rights ; or whether, 
 as above argued, the English law of Habeas Corpus is also 
 ours, and as Mr. Lincoln seems to think, for his action and 
 his language accord with that opinion, he at least has done 
 his duty. He has been guilty of no usurpation or stretch of 
 poAver. He has shown neither fear, favor nor affection, per- 
 sonal feeling or partisan passion, but on the contrary, has ad- 
 ministered his great office so impersonally, as the representa- 
 tive of Executive power, and with so much fairness, candor 
 and modesty, that even the reckless rancor of party spirit has 
 not ventured to impugn his motives. 
 
 Whilst, however, the course of the President has been clear 
 of doubt and beyond reproach, the conduct of Congress cannot 
 be easily explained or justified. Why did they not at once 
 respond to Mr. Lincoln's appeal ? The law was unsettled. 
 He himself said so ; and the variety of opinions on the subject 
 proved it to be so. Why did, why does Congress permit the 
 golden moments to pass, when, if ever, the meaning of the 
 Constitution on this most vital point might be established for 
 all the future ? Mr. Lincoln took on himself a heavy responsi- 
 bility in their absence. He told them so, and asked for their 
 support. They did support him in the matter of military 
 force to quell the rebellion ; they gave him more men and more 
 money than he asked. Why have they been silent in relation 
 to the power of discretionary imprisonment of suspected and 
 dangerous persons which he employed for the same pi^^'pose, 
 and which involved constitutional principles more important 
 even than the calling out of troops w^ithout the previous sanc- 
 tion of the Legislature ? Was he guilty of usurping authority ? 
 Congress is bound to say so. Was he thus guilty to serve the 
 purpose of criminal ambition ? It is the duty of Congress 
 to denounce or impeach him. Did he honestly mistake the 
 law and thus set up a dangerous precedent ? The silence of 
 Congress Avill establish that precedent. Was he in truth 
 right in law as in deed, and justified by the Constitution in his 
 fearless and honorable discharge of high and difficult duties ? 
 Then, both he and the law are entitled to the support of Con-
 
 236 THE TRIAL OF THE CONSTITUTION. 
 
 gress, more especially as he asked for it, and it is unjust to 
 cast upon liim the responsibility of measures, which, as they 
 were in their nature partly legislative, the Legislature ought 
 to share. 
 
 The Republican party, who desire to crush the rebellion and 
 to restoiH? over the whole country tlie authority of the Union 
 and the laws, are supposed to favor the opinion that the 
 President has exclusive poAver to suspend the writ, either 
 under the Constitution or by reason of the abnormal rule of 
 martial law. Why then not say so and thus support their 
 chief who asks support ? They cannot say the law is settled, 
 for this construction of it is rejected impliedly by the Presi- 
 dent himself and expressly by the Chief Justice of the United 
 States. Neither can they deny that it is of great importance 
 both to the country and to the President that his powers be 
 clearly defined. The Democratic or opposition party is sup- 
 posed to sympathize to a greater or less extent with the 
 South and the rebellion, to advocate the doctrine of State 
 Eights, and to oppose the motives and objects of the war. 
 Their opinion is understood to be, that the privilege of the 
 writ of Habeas Corpus can be suspended only by the Legisla- 
 ture, although the very life of the Government may be 
 menaced during the recess of Congress and however immi- 
 nent the danger may be. Why then does that party permit a 
 principle, in their judgment so dangerous to liberty, to be 
 silently by j^recedent introduced into the Constitution ? It is 
 true they are a minority, but surely for the sake of the future 
 they might speak out and bring in a bill declaratory of the 
 law as they understand it, and thus place on the record their 
 opinion on a question that so deeply involves the interest of 
 the future. 
 
 So far, however, the only thing to be inferred from the 
 conduct of Congress is, that INIr. Lincoln has been justified. 
 Silence implies more than consent, it implies ap])rov;il in 
 cases Avhere, unless there be approval, remonstrance or censure 
 would be a duty. And no doubt the silent acquiescence of 
 Congress and of the people in measures affecting a thing so 
 vital as personal liberty, so cherished, so dear to the popular
 
 EXECUTIVE POWER. 237 
 
 heart, is to be ascribed to the general conviction that thev 
 were necessary, and to the impression made bj the character 
 of Mr. Lincoln, The majority of Congress and the masses 
 of the people are enthusiastic in their desire that tlie war may 
 lead to speedy victory and its objects be accomplished. They 
 see that the power to arrest the seditious, open or covert, not 
 as a punishment for crime but as a precaution against danger, 
 is a means as necessary to success as an army. They are 
 convinced that Mr. Lincoln may be safely trusted with that 
 power. Therefore, they behold with calm and grave satisfac- 
 tion, men suddenly seized almost every day, sometimes at 
 their firesides, and hurried off, without inquest, indictment or 
 trial, to a distant prison, — a spectacle which, but for the 
 reasons mentioned, would have roused the country into angry 
 billows of passion, as the wind rouses the rage of the Atlantic. 
 The people know the necessities of the hour, and appreciate 
 the man whose hand is on the helm. They trust him. By a 
 few plain and simple sentences and unostentatious deeds, — by 
 golden silence and by silvern speech, — by masterly action and 
 by masterly inaction, this sage and hero from the backwoods 
 has, in one short year, commanded the entire confidence of a 
 great nation, of a people the most intellectual and forcible on 
 earth. Before the grandeur of that sentiment the base spirit 
 of party cowers in silence, and the venomed tongues of the 
 demagogues are obliged to hiss in whispers. In all debates 
 and discussions, legislative or social, it has become the custom 
 to mention the name of Mr. Lincoln with respect. Clothed in 
 the raiment of truth and justice, he walks unscathed through 
 the fiery furnace of civil war, and enters without fear the 
 murky dens of party, where the bowlings and gnashings of 
 envy, hatred and revenge are awed into silence by his pre- 
 sence. It is a signal instance of the magnetic power of cha- 
 racter, which conquers, like beauty, merely by being seen. 
 By no popular arts, by no dazzling glare of military or other 
 renown, by no previous services to the country, by no shining 
 or captivating graces or accomplishments, but by the quiet 
 and unostentatious display of a national and catholic spirit, 
 of a good heart, of perfect integrity and purity of motive, of
 
 238 THE TRIAL OF THE CONSTITUTION. 
 
 valor to meet danger and of ability to cope Avith difficultT, has 
 this man of plain manners, who in his youth "worked as a farm 
 laborer, seated himself Avithout an effort on a throne nobler than 
 that of King or Kaiser, — the respect and faith of his coun- 
 trymen. He took the place with natural ease because it be- 
 longed to him, as an eagle calmly perches on the topmost 
 bough of an oak or the loftiest crag of a mountain. Indeed, 
 if we look into the matter accurately, he has always occupied 
 a similar place, and by precisely the same title, for his neigh- 
 bors called him "Honest Abraham Lincoln," and the only 
 difference is, that now he is known to a nation, before to a 
 village. It is a feat that has not often been performed in the 
 world, and in our history only once before, and then by Wash- 
 ington. It would be a good thing if, from the example of 
 both, all potentates and aspirants to power, whether Princes 
 or Presidents, could learn that, — 
 
 " Corruption wins not more than honesty." 
 
 But the eagerness of Congress and of the people for the 
 prosecution of the war, or their confidence in the talents and 
 virtues of the President, will not settle the law of Habeas 
 Corpus. 
 
 Our Constitution has been working now for seventv-two 
 years, and its construction is yet doubtful on two points of 
 prime importance, — the defence of the public safety and the 
 security of personal freedom. No man can tell what the law 
 is or will be, from anything that has been said or done by Con- 
 gress or the President, though some guess may be made, from 
 the decision of Chief Justice Taney in Merriman's case, as to 
 what the courts will say, should the question come before them. 
 As it is an open question, we may treat it in the spirit, not of 
 lawyers, but of lawgivers, and consider, not what the Consti- 
 tution is, but what it ought to be. This, indeed, is the higher 
 and nobler topic of the two, and is presented from time to time 
 both by the advancement of a nation and by its decline. Laws 
 and customs become obsolete, because unsuited to new condi-
 
 EXECUTIVE POWER. 239 
 
 tions of society, introduced either by its decay or by growing 
 knowledge and the needs of imj^roving civilization. 
 
 "All the years invent; — 
 Each month is various to present 
 The world with some development." 
 
 The conservatism that would bind the present in the fetters 
 of the past, is as unwise, as the rash spirit of innovation that 
 perils attained good on the Avild sea of experiment. To yield 
 slowl}', to cling to the old things that have been tried, because 
 they have been tried, — even because they are venerable, al- 
 though their use may have apparently passed away, — to dis- 
 trust new things, and so to adopt them that they may harmonize 
 with the old, has been the practice of the English people. It 
 has enabled them to pass through great dangers without dis- 
 astrous revolutions, and gradually, without shocks of change, 
 to convert a feudal and almost absolute monarchy into a mo- 
 narchical and aristocratic Republic, and to combine liberty 
 with order and stability. No part of the English Constitution 
 exhibits in a more signal manner the masterly workmanship of 
 time than the English Executive power. It has proved fully 
 equal to the task of protecting the nation from danger, with- 
 out encroaching upon the right of personal liberty. It has 
 done this whilst acting in subordination to Legislative power. 
 The question now presented to us is, shall we so construe the 
 Constitution as to give to the Executive (in cases of rebellion 
 or invasion) exclusive control over the liberty of the citizen, to 
 enable it to defend the public safety ? 
 
 We should do this, some contend, because the President is 
 so weak that he needs support against the Legislature, which 
 threatens to absorb all the power of the Government. But on 
 the point in question, he would have all the power of the Eng- 
 lish Ministry, should the English law be adopted, and experi- 
 ence has shown that to be sufficient for the purpose. It may 
 be said, moreover, that he has moi'e than all the power of 
 Ministers. They are members of the Legislature, which he is
 
 240 TUE TRIAL OF THE CONSTITUTION. 
 
 not. They therefore have a direct personal interest in main- 
 taining tlic rights and authority of the Legislature, -whereas 
 no such influences act upon the President, but as might easily 
 happen, one directly opposite. The Ministry go out of office 
 ^vhen their important measures are opposed by a majority of 
 Parliament. The action of Government, therefore, responds 
 easily and promptly to the wishes of the people. The Presi- 
 dent retains power during his term, however repugnant his 
 policy ma}^ be to Congress or to the nation. If, therefore, the 
 English law, which refuses to the Crown the power of secret 
 and discretionary imprisonment, for any cause, without the con- 
 sent of Parliament, be wise, there is a stronger reason why 
 the President should be subjected to the same restraint, unless 
 indeed there be something in the Constitution of Congress 
 which renders that body unfit to exercise or share the power. 
 But Congress represents the people, and all parties of the 
 people, the minority as well as the majority, whilst the Senate 
 more especially represents the States, and was intended to be 
 the conservative influence in our system to restrain the impulse 
 of popular passion. Experience has shown that the President 
 is likely to be the mere chief of a party and of tlie Democratic 
 party. The natural tendency of a democracy is towards des- 
 potism, and the occasion on which it becomes despotism very 
 generally grows out of civil strife and anarchy engendered by 
 itself. 
 
 In such times bold, ambitious men, of commanding talents, 
 seize the opportunity offered by disorder and misrule to exe- 
 cute their designs. Irresponsible power to make secret arrests 
 would be a formidable weapon, fashioned for their purpose. 
 It is true, the terms of the Constitution confine its exercise to 
 the cases of rebellion and invasion. But what is rebellion or 
 invasion? It is easy to call almost anything by these names, 
 in order to give color to wicked designs, and cover them with 
 the semblance of legality. When, some years ago, Mr. Polk 
 and his party wished to plunder Mexico of territory, they dis- 
 covered that Mexico had invaded our country. " American 
 blood has been shed on. American soil," they said. "War 
 therefore exists." And they made war on that weak nation.
 
 EXECUTIVE POAVER. 241 
 
 and got what tlicj wanted in territory, but not Avhat they 
 wanted in General Taylor for next President. Mr. Polk de- 
 nounced those who opposed the war as "moral traitors," and 
 it would have been a short and easy step in his logic, had his 
 purposes required it, to declare, that in this case of invasion, 
 the public safety demanded the arrest of such traitors. 
 
 Not long ago, the people of Kansas, having been attacked 
 by armed bands from Missouri, insulted by iniquitous laws 
 imposed on them by fraud and violence, and exasperated at 
 seeing the Federal Government in league with the men by 
 whom these outrages were committed, assembled together in 
 public meetings to protest against such oppression. They went 
 so far as to call a convention to make a Territorial Constitu- 
 tion for themselves, instead of the one which had been made 
 for them by the Missourians. Mr. Buchanan declared that 
 they were rebels. He marched troops against them. It Avould 
 have been a plausible pretext to declare that the public safety 
 required the suspension of the privilege of the writ of Habeas 
 Corpus, because of the rebellion in Kansas. Had the Presi- 
 dent possessed the exclusive power to do this, prominent men 
 in and out of Congress, who sympathized with the Kansas 
 people, might have been imprisoned and silenced. But Mr. 
 Buchanan was not fitted by nature to play the part of a usurper, 
 or to lead a fierce democracy or a Southern chivalry to em- 
 pire over the ruins of a government. Had he been so, he 
 would have found backers, even at that time. North and South. 
 The Lecompton Constitution, and the eflbrts to force it upon 
 the Kansas people, are sufficient proof of a reckless partisan 
 spirit, and of sectional ambition that wanted only a leader to 
 culminate, as they have since done, in civil war and attempted 
 revolution. 
 
 Mr. Buchanan, with all the aid of his Southern and North- 
 ern friends, and all the influence of Executive patronage, 
 failed to obtain a majority for that iniquitous measure, corrupt 
 as Congress was. He would have failed also had he asked 
 them to suspend the Avrit of Habeas Corpus. But suppose 
 that he alone had possessed the power to suspend it, and had 
 been gifted with the commanding talents of a Cromwell, or 
 
 16
 
 242 THE TKIAL OF THE CONSTITUTION. 
 
 even with the strong Avill and violent passions of a Jackson. 
 Would not such a power have been a terrible engine in his hands, 
 supported as he probably would have been by the cheers of a 
 Northern democrac}', and encircled as he certainly would have 
 been by the swords of a Southern army ? Other similar cases 
 might be cited from our own history, and many from the annals 
 of other mitions. "What has happened before may happen again. 
 The President is independent of Congress in the mode of his 
 appointment, and in the duration of his power. The majority 
 of Congress may be opposed to his measures and plans, may 
 know them to be dangerous and dishonest, yet he may be sus- 
 tained by a desperate faction or section. He may be a man 
 of ability, courage and reckless ambition. Democracy breeds 
 and nurtures such. To invest one of this character with arbi- 
 trary authority over personal liberty, therefore over the free- 
 dom of speech and of the press, to be exercised secretly and 
 without responsibility, would be to place at his feet, so far as 
 the law could, the liberty of the people and the existence of 
 the Government. To appoint beforehand cases of " rebellion 
 and invasion" as the occasions when he might use this power, 
 would merely be to select the opportunities which he himself 
 would choose, periods of disorder, when armies were in the 
 field, and men's minds excited by passion and alarm, and 
 when, with least risk, he could accomplish his purpose. 
 
 iSTot only does the President retain office for his term, 
 though opposed by a majority of Congress, but also against 
 the wishes of a majority of the people. He may become the 
 representative of an aggressive, violent and desperate faction, 
 determined to rule or ruin. The President may be legally 
 elected by a minority of the people, as was the case both with 
 Mr. Buchanan and Mr. Lincoln. He may commence his term 
 with a majority of Congress, and before the end of it alienate 
 his friends, as did Mr. Buchanan. The misconduct of the 
 President, that Avould require the restraint of the Legislature, 
 ought and, in a healthy state of public opinion, would deprive 
 him of the support of his party. Mr. Buchanan found himself 
 without a majority in Congress before the close of his term ; 
 but he had a party outside of Congress arming to overturn the
 
 EXECUTIVE POWER. 243 
 
 / 
 
 Government. Tie helped them by inaction, by connivance. 
 His own officers helped them by surreptitiously furnishing 
 them "with weapons and ammunition, the property of the 
 Government. 
 
 Tliis party claimed a constitutional right to extend slavery 
 in defiance of the will of the Legislature. They claimed also 
 a constitutional right to secede. They found manj^ advocates 
 of both claims in and out of Congress, in the North as well as 
 the South. If all these were correct in their opinions, who 
 were the rebels ? The South resisting illegal oppression or 
 the North resisting; Mr. Buchanan ? Had he been made of 
 sterner stuff, and been of a nature to carry with him the 
 passions of the populace, he might have afforded his friends 
 more effectual aid than he did. In that case the authority, 
 at his discretion, to arrest and imprison any one who ventured 
 to oppose him, Avould have been a potent instrument in his 
 hands ; and armed with it, and other Executive powers, he 
 could, even in the few months he remained in ofiice after the 
 rebellion began, have given to the war a very different cha- 
 racter from what it now Avears, if indeed he would not have 
 prevented it altogether, by establishing the supremacy of 
 slavery and the South. 
 
 The Executive officer of our law, it thus appears, may be 
 elected by a minority of the people, or by a section of the 
 country, or by both, and he may be opposed by a majority of 
 Congress, yet retain his power for four years, a period not too 
 short for the execution of ambitious designs. 
 
 An English ministry is not elected at all, but is appointed 
 by a branch of the Government elevated, so far as it can be 
 by human means, above the influences of partisan prejudice 
 or popular passions, and bound, more than any, by personal 
 interest to uphold the permanent glory and greatness of the 
 nation. The ministry are appointed by the monarch, whose 
 rank and power are not affected by the rise and fall of parties, 
 and who can only be injured by a revolution. The officer 
 chosen by the Crown to administer the Government cannot 
 be a candidate of a party united for the purpose of placing 
 him in power, although he may be a representative of the
 
 244 THE TRIAL OF THE CONSTITUTION. 
 
 principles of a party, and he cannot hold power in opposition 
 to the will of Parliament, of which he is also a member. It 
 is, therefore, scarcely possible that he can become the leader 
 of a faction whose purpose would be to destroy the rights of 
 Parliament, or to overthrow the Constitution. Our expe- 
 rience is far otherwise, and therefore, Avith greater reason 
 than in the English system, should the President be subjected 
 to legislative control in a matter so sacred as the security of 
 personal liberty. 
 
 The importance of the principle is as well illustrated by 
 supposing the President sustained by a majority in Congress. 
 He would, therefore, be the more dangerous, if his intentions 
 were evil, whether he possessed exclusive or co-ordinate and 
 independent authority to suspend the privilege of the Habeas 
 Corpus. Before this could be done, if to do it required the 
 sanction of Congress, the necessity for such a measure would 
 become a subject for debate, in which the minority could at 
 least make an appeal to the country, and perhaps obtain a 
 hearing, even amid the turbulence of democratic passions. 
 Such an appeal, aided by a free press, might bring out the 
 patriotism and good sense and good principles of the country, 
 and thus influence the action of Congress, as happened Avhen 
 the Lecompton Constitution Avas under discussion, or it might 
 affect the election of a succeeding Congress before the expira- 
 tion of the President's term, as happened during the adminis- 
 tration of Mr. Buchanan, who began with a large majority 
 and ended Avith a small minority. But if the President had 
 exclusive power to suspend the privilege of the Avrit, he could 
 silence remonstrance, denunciation or debate, either in the 
 Legislature or the press, and if supported by an unscrupulous 
 majority in Congress, it Avould be difficult to set any limits to 
 his ability to do mischief. It would be easy to call any meet- 
 ing of the people assembled to express disapproval of his 
 policy a rebellion, and as easy to find that such rebellion
 
 EXECUTIVE P AV E R. 245 
 
 endangered the public safety, and thus the engine of revolu- 
 tion or oppression might be set in motion. 
 
 The case might occur of a patriotic and A'irtuous President, 
 resisting, in a period of popular excitement, a factious and 
 corrupt majority of Congress in sympathy with a rebellion 
 or invasion, and Avho therefore might refuse to authorize the 
 suspension of the privilege of the writ. As a rebellion is usu- 
 ally connected Avith the interests, doctrines or passions of a 
 party, it has, in most cases, secret or avowed friends and ad- 
 herents in every rank of society, and even in official station. 
 Such is notoriously the case at the present moment. A 
 numerous party in the ITorth sympathize with the rebels, 
 advocate their principles, magnify their power, extol their 
 victories, lament their defeats, give them secret aid and open 
 support, and oppose and vilify every measure of the Govern- 
 ment to restore the Union and enforce the laws. That party 
 has its representatives in Congress, in the army, on the Bench, 
 even, it is said, in the Executive departments of Government. 
 It often happens also in a foreign war, that the enemy has 
 allies in an invaded country, for a foreign war may be also 
 connected with party politics. All history is full of such 
 examples, including our own. There have been periods in this 
 country Avhen a war with either democratic France or con- 
 servative England Avould have secured for either a large body 
 of passive Avell-Avishers, if not of active adherents. 
 
 But if, because of these risks, the President ought to be 
 clothed Avith exclusive or independent control of the Avrit of 
 Habeas Corpus, so ought he to have the same poAver to call 
 out the militia and to provide for enlarging and supplying 
 the army, means even more efficient for repelling invasion or 
 quelling rebellion, than authority to arrest suspected or sedi- 
 tious persons. In all Governments Ave must place poAver and 
 repose confidence somcAvhere, and in this naughty world of 
 ours Ave can find no other depository for them than poor, 
 weak, erring humanity. PoAver Avill ahvays be abused, Ave 
 may be sure of that. The only question is, where can it be 
 placed Avith the greatest chance of safety. It is true that 
 the great danger of a democracy is the tyranny of a majority.
 
 246 THE TRIAL OF THE CONSTITUTION. 
 
 But the power of a majority led by a single chief is far more 
 dangerous than that of a majority represented in a legislative 
 assembly, because the former is more prompt, more vigorous, 
 more secret and more persistent. The action of tlie Legisla- 
 ture is subjected to the delays of form, of debate, of the resist- 
 ance of the minority. It is renovated by elections recurring 
 during the Presidential term, which may exert upon it the 
 influence of the sober second thought of the people. In our 
 Congress both branches must agree to any measure. The 
 leader of a party, moreover, is apt to possess more of the 
 qualities which dazzle and captivate the multitude. A mili- 
 tary hero is especially the object of their passionate admira- 
 tion. Military heroes are developed by war, by " rebellion 
 and invasion," and these occasions afford to criminal ambition 
 opportunity to execute its plans. 
 
 For these reasons in part, the natural tendency of a de- 
 mocracy is towards a military despotism. An American 
 President has been, and is likely again to be, a partisan 
 democratic chief. He has been, and jjrobably again will be, 
 a "military hero," blindly and passionately supported by the 
 masses. He holds office for four years, with or without a 
 majority of Congress, with or against the wishes of a majority 
 of the people, and in either case it might be dangerous or 
 fatal to public liberty to invest him with exclusive power over 
 private liberty. Wiser and safer is the English plan, which 
 places both, together with the public safety, under the charge 
 of the wliole Government, requiring the action of the Execu- 
 tive branch to suspend the privilege of the Habeas Corpus, 
 and the thought of the Legislature to determine the necessity 
 for a measure which nothing but necessity can justify. 
 
 It may be supposed that the power of impeachment vested 
 in Congress is a sufficient restraint on Executive abuse. 
 Where the President is the offender, however, and in cases of 
 real danger, it would not prove effectual. The same reason 
 that has rendered an English monarch irresponsible, and 
 given rise to the maxim that the King can do no wrong, ap- 
 plies to our Chief Magistrate. A President could hardly be 
 punished without causing a civil Avar. To be elected he must
 
 EXECUTIVE POWER. 247 
 
 have a party. Unless he were a man of talents and forcible 
 character, and supported by a strong party, he would not at- 
 tempt to carry extreme measures by violent means, or to over- 
 throw the Government, either of which implies a state of high 
 popular excitement. A strong party inflamed by passion, 
 would not permit a leader of powerful ability to be punished, 
 and the attempt to punish would precipitate a revolution. 
 The penalty, in case of conviction on impeachment, extends 
 only to loss of office, and a man who has made up his mind to 
 the daring attempt of destroying the Union or overturning 
 the Government, has already taken a worse fate than that 
 into his account. Impeachment, therefore, is possible only 
 against a weak President, with a weak party, in quiet times. 
 It would prove a feeble defence amid the storms of popular 
 passion, when bold men are tempted by opportunity to plunge 
 into crime. The very possession by a party leader of such a 
 weapon as the power of secret imprisonment might determine 
 his action. 
 
 " How oft the sight of means to do ill deeds 
 Makes ill deeds doue.'' 
 
 In the beginning of the reign of Charles I (1628), which, 
 ere it closed was destined to develop and establish the prin- 
 ciples of English liberty, the young king, among other things, 
 boldly claimed the power of committing to prison, without 
 specifying any offence in the warrant of commitment, and the 
 Judges, under his influence, decided that they had no power 
 to examine such commitments and admit the prisoner to bail. 
 This and other similar assumptions were resisted by Parlia- 
 ment, which then gave tokens of the free spirit which after- 
 wards hurled this king from his throne, and that resistance 
 was indeed, as Lord Campbell says, " the grand crisis of the 
 English Constitution."* It was the commencement of the 
 struggle for ancient rights that ended in their triumphant es- 
 tablishment on a firm basis in 1688. Sir Edward Coke was a 
 member of the first Parliament of Charles I, and sounded the 
 
 * 1 Campbell's Lives of the Chief Justices, 270.
 
 248 THE TRIAL OF THE CONSTITUTION. 
 
 charge in resistance to Ins arrogant demands. He opposed 
 the King's claim of the right to imprison, and denied the le- 
 gality of the decision of the Judges in these words : " What 
 is it hut to declare upon record that any subject committed by 
 such absolute command, may be detained in prison forever ? 
 What doth this tend to but the utter subversion of the choice, 
 liberty and right belonging to every freeborn subject in this 
 Kingdom ? A Pcn^liament brings Judges, officers, and all men 
 into good order." He succeeded in carrying resolutions 
 which half a century later were made the foundation of the 
 Habeas Corpus Act. So thought this great lawyer fifty 
 years before the English people obtained the writ, which has 
 since been called the bulwark of their liberties ; so, as we have 
 endeavored to show, thought the makers of our Constitution 
 a hundred years after that writ had been in successful opera- 
 tion ; so ought Congress now to think, Avhen the ordeal 
 through which the Government is passing indicates the wisdom 
 of the English law and of the whole law. At any rate, the 
 law should now be permanently settled by an authoritative 
 precedent, for open constitutional questions are mischievous 
 evils. The experience of the past as Avell as the needs of the 
 present, point out a simple and easy mode of settlement. 
 Let Congress pass a bill, reciting the expediency of removing 
 all doubt on the subject, ratifying the acts of the President on 
 the ground of urgent necessity, indemnifying him and all of 
 his officers for all arrests heretofore made, and suspending the 
 privilege of the writ of Habeas Corpus during the war. 
 
 These and other elements in the instrument of Executive 
 power invented by the Constitution, in Avhich it differs from 
 the English model, are yet to be tested by time. An English 
 King occupies the highest station, social and political, in the 
 realm. He holds his place for life by inheritance, by legal 
 right, and is under no obligations for it to a party or to the 
 people. His right is vested before he is crowned, and can 
 only be divested by a revolution. He represents the dignity
 
 EXECUTIVE POWER. 249 
 
 and power of the nation at home and abroad. The people are 
 his " subjects." The island, its colonies and dependencies are 
 his " dominions." All the officers, civil and military, are his 
 " servants,", of whom he is the " august master." The army 
 and navy belong to his " majesty," and all executive acts of 
 Government are done by his "command." He is lapped in 
 splendor and luxury ; he is encompassed by pomp and cere- 
 mony ; he is clothed with the prestige of antiquity, and his 
 throne and crown are lustrous with the gems of national 
 tradition and glory. He has therefore great social influence, 
 and political influence also, according to his talents and ambi- 
 tion, but he has no real political power. Gradually and cau- 
 tiously that has been taken from him by the free spirit of the 
 people, and lodged Avhere it is under their control. PoAver is 
 given to the Ministers, who, though appointed by the King 
 and removable by the King, are also members of the Legisla- 
 ture, and as they cannot carry on the Government without the 
 aid of the Legislature, the Crown is under the necessity of 
 selecting Ministers agreeable to it. 
 
 The result of all this unique machinery, the slow growth of 
 ages, is manifold. Executive power is subjected to Legisla- 
 tive, and thus mediately to public opinion, whilst the person 
 who wields it, not being chosen by the people, and aftccted 
 only indirectly by an election, is not likely to become a par- 
 tisan leader or demagogue. He is never a candidate, cannot 
 therefore promise office and emolument to active adherents, 
 and thus corruptly influence elections. His term of office is 
 uncertain, as he can be removed directly by the Crown and 
 indirectly by Parliament, and therefore he cannot, supported 
 by a faction, set both at defiance during a period fixed by law. 
 The power moreover is not exercised by one person, but by 
 several, who share its authority and responsibility, vvho form 
 indeed an Executive Council. A position so checked and 
 limited, though a worthy object of honorable ambition, is not 
 likely to become either the object or the instrument of criminal 
 ambition. It would not satisfy a Cjiesar or a Kapoleon, nor 
 could it be for them a stepping-stone to a higher seat. The 
 sword and the ballot-box, the hustings and the battle-field are
 
 250 THE TRIAL OF THE CONSTITUTION. 
 
 the appropriate weapons and spheres of such men, and it is to 
 preserve liberty from such that the English Constitution was 
 created. 
 
 The Monarch, not the Minister, holds the higlncst place in 
 the kingdom. He is invested with rank, influence, splendor, 
 and he has them all for life. The English Throne, represent- 
 ing the majesty and nationality of the English people, is sur- 
 rounded by everything that can tempt worldly ambition, and 
 for that reason it is jealously guarded against worldly ambi- 
 tion. The person to fill it is ascertained beforehand by law. 
 Birth chooses the king, not talents, character or personal 
 qualities of any kind. Wefe it otherwise, such a prize 
 would become the object of prominent men and powerful 
 parties, and the death of the Monarch would be the signal 
 of civil war, or if its possession depended on an election, of a 
 contest almost as dangerous as civil war, and very likely to 
 lead to one. The terrible risks of a disputed succession, of 
 revolution and anarchy, are thus avoided, for the succession 
 will always be disputed if at all doubtful. Herein lies the 
 philosophy of the hereditary principle of the English Govern- 
 ment. It prevents civil war and revolution, of which the En- 
 glish people have had some bitter experience, is therefore 
 upheld by them with reverence and loyal tenacity, and there- 
 fore too, whilst depriving the Crown of power over their liber- 
 ties, they have lavished upon it everything else that pride and 
 affection can bestow. 
 
 Not in England only, however, is the hereditary principle 
 cherished, and for the same reason, — to prevent a contest for 
 the place of supreme power and dignity, even by an election ; 
 for the struggle caused by such a prize is likely to be too ex- 
 citing to be settled by a count of votes. Even France, learned 
 in revolutions and professing democracy, has been forced to 
 adopt the hereditary principle, to avoid the horrors and dan- 
 gers of both. • The old Royalty and the old King were killed 
 by the Jacobins. When the fever-fit was over, it was found 
 that neither could by any process be restored to life, but only, 
 by galvanic battery, into short, hideous show of life. The old 
 feudal monarchy and the Bourbons, who could neither learn
 
 EXECUTIVE POWER. 251 
 
 any tiling nor forget anything, were behind the age. The age 
 or the French people, however, were not up to a Republic, 
 not even to a limited monarchy, — that is to say, to an Execu- 
 tive power subordinate to the Legislative. Their Celtic blood 
 demanded the one man power or despotism. The}' got a very 
 splendid despotism, but soon reflected that their despot was 
 not immortal, and therefore at his death, somebody else would 
 be eager to fight for the place he had won by fighting, and 
 thus the miseries of the Revolution would be renewed. They 
 therefore attempted to found a new dynasty of Bonapartes, — 
 not feudal, but popular. The despot was not King of France, 
 but Emperor of the French. * The attempt failed, — for the 
 time, at least. The continuity of the dynasty was broken by 
 the overthrow of the Emperor, by an effort to revive the old 
 monarchy, by an effort to establish a modern limited monarchy, 
 by another vain effort to get up a Republic, and now, at length, 
 after much bloodshed and disorder, the Celtic nature of the 
 French has brought them back again to a popular despotism 
 and a Bonaparte. 
 
 Taught by accumulated experience the woes of revolution, 
 France, in order to escape from them, has already engrafted 
 the hereditary principle on its second despotism ; nay, to make 
 it stronger, has declared that it exists only by virtue of the 
 hereditary principle infused into the first, — thus giving it a 
 little root in the past. Louis Napoleon is Napoleon III, the 
 Government of the Empire founded by ISTapoleon I having 
 never legally ceased to exist, notwithstanding the interrup- 
 tions of feudalism, limited monarchy, and republicanism. 
 France, therefore, tormented by memories of past anarchy 
 and fearful of its recurrence, has been twice obliged to turn 
 for refuge to the dark and gloomy shelter of hereditary des- 
 potism ; in other words, to arbitrary Executive power, which 
 the people do not confer, in the administration of which they 
 do not participate, and which is hereafter to be wielded by 
 one who, if he possesses either talents or virtues, is at best a 
 happ3' accident. 
 
 What a history, and what fearful tales of human sufi'ering 
 does it not imply ! First a corrupt, decayed, effete monarchy
 
 252 
 
 THE TRIAL OF THE CONSTITUTION. 
 
 and aristocracy, Avliich had grown away and apart from the 
 people, and therefore wanted the sap of life, overturned by a 
 revolution inspired by great and noble thoughts and senti- 
 ments ; then democracy, producing anarchy ; and then, as a 
 refuge from that, military despotism ; then long, exhausting 
 and horrible wars, growing out of the despotism ; then con- 
 quest and the past put forcibly back by the enemy ; then spas- 
 modic efforts to find, some safe means, — some juste milieu, — 
 between the disorders of democracy and the degradation of 
 despotism ; then democracy again, and anarchy ; and then, 
 again, a despot, and the humiliation of being governed by Avill 
 and not by law, with all noble hearts embittered by vain long- 
 ings for liberty, for which so many costly sacrifices had been 
 made in vain, with present tranquillity and material prosperity 
 dependent on the life and conduct of the present Emperor, and 
 the future dark as before with lowering clouds. 
 
 Very different during the same period has been the history 
 of England. The cause of the difference is to be found, not 
 in political institutions, but in the inherent qualities of the 
 English and French people ; for out of these do principles and 
 forms of government grow. Each began with feudalism, from 
 which France broke violently away, and, through bloodshed, 
 violence, terror and crime, reached military despotism ; whilst 
 England, by slow and peaceful changes, with steady advance 
 in prosperity and poAver, has built up a Constitution which 
 combines in a harmonious whole republicanism without demo- 
 cracy, an aristocracy interwoven with the blood, business, inte- 
 rests and affections of all classes of the people, and an Execu- 
 tive power which unites hereditar}^ rank and regal magnificence 
 with the authority of a Chief INIagistrate controlled by the Le- 
 gislature. This Constitution was impossible for France. It 
 is the outgrowth of the genius of the Saxon race, and expresses 
 its character. 
 
 Our ancestors brought its principles across the Atlantic 
 with them, because they brought their Saxon blood and native 
 love for liberty, order and law. They could not bring the 
 forms of the Constitution, for some of them were inconsistent 
 with the new circumstances in which they were placed. They
 
 EXECUTIVE 1' W E R. 253 
 
 could not bring royalty and the hereditary principle. They 
 were obliged to leave these out of their plan. The organiza- 
 tion of the Executive department -was the most difficult task of 
 the Convention. Many schemes were offered. An Executive 
 Council ; a President chosen by the Legislature ; a President 
 for life, and for longer and shorter terms were severally pro- 
 posed and discussed. At length the Convention decided on a 
 President to hold office for four years, chosen, not directly by 
 the people, but by an Electoral College selected by them. 
 He has neither rank, title nor splendor, but he has substantial 
 power, and is very like what an English Prime Minister would 
 be if the monarchy were abolished and he were elected by the 
 people for a term of years. It is obvious that Executive 
 power so lodged exposes the country to all the perils avoided 
 by the English system, of an hereditary, irresponsible King, 
 combined with a responsible and removable ministry appointed 
 by the King. The highest political position is thrown before 
 the people as a prize for contending parties led on by ambi- 
 tious men. All the passions of a popular election are periodi- 
 cally brought into action and stimulated by a stake of immense 
 importance, representing the innumerable private interests 
 influenced by Executive patronage, the interests and rivalry 
 of classes and of sections, and the principles, often the exas- 
 perated passions, of political parties. 
 
 Such a process, repeated at short intervals, supposes, and 
 to be safe requires, great general intelligence among the 
 people, and great order and fairness in the manner of con- 
 ducting elections. It requires, also, as an essential condition, 
 the quiet acquiescence of the whole people in the result of an 
 election. 
 
 The defeated party must submit peaceably, otherwise the 
 evils of a disputed succession, which is nothing less than civil 
 war, will surely follow. The ballot-box is the American sub- 
 stitute for the European principle of hereditary right. The 
 ballot-box designates the person entitled to possess the coveted 
 bauble of power here, just as birth does in England and else- 
 where. But if the decision of an election be disregarded, 
 then Avould commence the reign of violence here just as it
 
 254 THE TRIAL OF THE CONSTITUTION. 
 
 would in England were an attempt made to set aside the law- 
 ful heir to the Crown. 
 
 Since the adoption of the Constitution we have had sixteen 
 Presidents; and though it cannot be said that the elections 
 have been entirely free from fraud and violence, they have 
 not been marked by flagrant or dangerous examples of either. 
 But we have already reached a period when the decision of 
 the ballot-box has been forcibly resisted. A powerful party 
 and section threatened to overturn the Government should a 
 President be elected not chosen by themselves. They have 
 kept their promise. We are now in the midst of a civil war 
 growing out of a disputed succession, and one of the defeated 
 candidates is at this moment in arms against the Government, 
 to whose highest ofiice he dared to aspire, with that threat 
 hot on his lips. Our elective monarchy — for the President has 
 all the power of an English ministry, and more than the power 
 of an English King — has failed to maintain the tranquillity of 
 the country and save it from rebellion and attempted revolu- 
 tion. It is still on trial. Perhaps the present war, by estab- 
 lishing the principle that the ballot-box must be obeyed, may 
 place the Executive branch of the Government on a surer 
 basis. 
 
 If it be important that the manner in which the chief Exe- 
 cutive officer of a Government is chosen, be such, as not to 
 endanger its existence or the peace of society, the clioice made 
 is no less important. Power in weak or Avicked hands is a 
 dangerous thing, against reason, and a sad and monstrous 
 spectacle under the sun, however often exhibited. The natu- 
 ral allies of power are wisdom and goodness, and only when 
 so allied is its influence benign. Integrity and a certain de- 
 gree of ability are conditions essential to the Executive office. 
 How to secure them is the difficult question. In hereditary 
 monarchies, where the King exercises substantial power, the 
 qualities which are to direct that power depend on the acci- 
 dent of birth. There is always a chance that he may be 
 wholly incompetent. Probabilities are, however, much in 
 favor of his possessing average ability, and that what is weak 
 in liim will be supported, what is evil restrained, what is good
 
 EXECUTIVE POWER. 255 
 
 developed, hj a careful education, by his obvious interest, by 
 custom and tradition, by wise advisers and by public opinion. 
 Should all these fail, he cannot live forever ; and the evil that 
 he can inflict, Europe thinks, may Avell be borne during one 
 short life, for the sake of the security afforded by the here- 
 ditary system, from the dreaded miseries of revolution. 
 
 The English Constitution, as already mentioned, avoids 
 this danger by means of the hereditary element, but it does 
 not leave to chance the selection of the person who is to exer- 
 cise Executive power. By contrivance wonderful as the roots 
 and branches and leaves of a tree, that person is both a 
 legislator and a member of an Executive Council, and, clothed 
 with power, is also subjected to duty and responsibility. He 
 is appointed by one who never dies, and who, because of this 
 legal earthl}^ immortality has every earthly motive to make a 
 good appointment and no possible motive to make a bad one, 
 and moreover must, under any ordinary circumstances, make 
 a selection from a small circle of eminent men, known to the 
 nation. By this same incarnation of permanent authority, the 
 person thus chosen may be removed, but from the workings of 
 other parts of the system, it is almost impossible that he should 
 be so removed for any but the gravest reasons. Whilst the ap- 
 pointing power is placed above temptation, it has the best means 
 of becoming acquainted with the talents and character of dis- 
 tinguished men likely to aspire to high stations and worthy to fill 
 them. Finally, when the choice is made, the person chosen 
 must resign his place unless he can satisfy the judgment of 
 the most intelligent, highly educated, critical, fastidious and 
 thoroughly practical assembly of men on earth, the British 
 Parliament, representing the enlightened opinion of a people 
 jealous of liberty, rich in the treasures of long civilization, 
 and haughty with the pride of ancient power and glory. 
 
 These are severe tests. If they cannot always secure the 
 choice of the best men, they Avill be sure to prevent the selec- 
 tion of very bad ones, or speedily to get rid of such, if 
 selected. They form against tribunitian arts, demagogueism 
 and military heroism, a barrier which cannot be easily under- 
 mined or overthrown. It would foil the cunning of a Cati-
 
 25G THE TRIAL OF THE CONSTITUTION. 
 
 line and repel the genius of a Napoleon, as British bayonets 
 repelled his magnificent charges at "Waterloo. The true char- 
 acter of the Executive branch of the English Government 
 must be judged, not from the list of its Kings and Qnieens, 
 though that has illustrious names, but of its ministers. These 
 exhibit an array of ability and integrity, not surpassed, if 
 equalled, in the annals of any other nation. 
 
 They are certainly not surpassed by our own. It is a plausi- 
 ble theory that a people fit for freedom ought to have the privi- 
 lege of choosing the magistrate who is to exercise their power 
 and represent their nationality ; also, that to prevent abuses 
 and avoid the ill consequences of their own mistaken choice, 
 they should be able to exercise this privilege at short inter- 
 vals. But it is rash to predicate of the masses of any nation, 
 sufiicient intelligence and discretion to make a judicious 
 choice, and it is expecting much to impose upon them this 
 difficult task every four years, for they are proverbially apt 
 to be led astray by false lights, easily deceived and easily in- 
 fluenced by passion. The heart of the people responds quickly 
 to great virtues when displayed on some difficult emergency. 
 But unless so displayed, the multitude cannot recognize 
 talents or high moral qualities and are prone to be deluded 
 by pretension and falsehood. They are open to flattery and 
 easily led by a plausible tongue to indulge extravagant hopes 
 of visionary good. They are peculiarly susceptible to party 
 spirit and readily become passionate and obstinate partisans, 
 sticking to a dogma and to a leader, right or wrong, for the 
 sake of victory. 
 
 For these reasons party leaders and demagogues often 
 obtain complete control of the masses, direct their thoughts 
 and will, and dictate their principles and their votes, unless 
 when a great crisis, like the present, rouses the nation from 
 its normal state by violent crimes and imminent dangers. 
 Then, if any healthy life be left in the people, they rise 
 together and rally round their flag and their country, and 
 Avhoever can best serve both, and they forget party ties 
 and spurn old leaders, as they are now doing here. But 
 the rock must be struck a hard blow bv the divine rod of suf-
 
 EXECUTIVE POWER. 2r)7 
 
 fering and peril before such waters flow. Noble sentiment 
 and mental energy are not produced by peace and plenty, but 
 instead, apathy among the people and corruption in the state ; 
 mobs and demagogues, misrule, sedition, rebellion and revo- 
 lution. A Constitution should prevent these evils b}^ found- 
 ing its provisions upon the real character and habitual con- 
 duct of the nation to be governed by it, otherwise it must 
 fail. The interests involved in the choice of a President are 
 a valuable freight to be trusted, and at short intervals, to the 
 billoAvs of so uncertain a sea as the fluctuating opinions and 
 passions of the ignorant and mutable many. 
 
 Our ancestors did not intend so to trust them. . They did 
 not intend that the President should be elected directly by the 
 people, but that he should be the " chosen of the chosen." 
 They interposed between the President and the people an 
 Electoral College, subjected to many conservative restraints 
 and provisions to prevent intrigue, and to shield it from the 
 influence of popular folly and passion. The President was 
 meant to be the choice of the electors, — not of the people, — 
 and the former are not elected by the people, but appointed 
 by the States, in the manner directed by the Legislatures 
 thereof. These provisions manifest a desire to avoid the dan- 
 gers of a popular election for an office wherewith interests so 
 important and topics so exciting are necessarily connected. 
 
 To determine the mode by which the President should be 
 appointed was the most difficult and delicate task before the 
 Convention, for it was that part of their work in which they 
 had least assistance from the past. The English model was 
 out of the question. Any leaning towards it, in the existing 
 temper of the people, would have endangered the ratification 
 of the Constitution, Avhile granting too much to the excited 
 democratic tendencies of the hour would have insured its fail- 
 ure in practice. The Convention went as far as they dared in 
 favor of conservative principles, though not so far as some of 
 them desired. The wisest among them had serious doubts and 
 
 IT
 
 258 THE TRIAL OF THE CONSTITUTION. 
 
 misgivings, not so much as to the power conferred on the Pre- 
 sident, but as to the manner in which he is chosen and the du- 
 ration of his term of office, both of which might involve it in 
 tlie dangerous vortex of popidar passion, in which terrible 
 maelstrom the Constitution might also be engulfed. Much, 
 evidently, was hoped from the electors, as is clear from the 
 following remarks of Mr. Hamilton in the Federalist, No. 58: 
 
 "It is desirable that the sense of the people should operate in 
 the choice of the person to whom so important a trust is to be 
 confided. This end will be answered by committing the right 
 of making it, not to any pre-established body, but to men cho- 
 sen by the people for the special purpose and at the particular 
 juncture. 
 
 "It was equally desirable that the immediate election should 
 be made bj men most capable of analyzing the qualities adapt- 
 ed to the station, and acting under circumstances favorable to 
 deliberation, and to a judicious combination of all the reasons 
 and inducements proper to govern their choice. A small num- 
 ber of persons, selected by their fellow-citizens from the gene- 
 ral mass, will be most apt to possess the information and dis- 
 cernment requisite to so complicated an investigation. 
 
 "It was also peculiarly desirable to afford as little opportu- 
 nity as possible to turmoil and disorder. This evil was not 
 least to be dreaded in the election of a magistrate who was to 
 have so important an agency in the administration of the Go- 
 vernment. But the precautions which have been so happily 
 concerted in the system promise an effectual security against 
 this mischief. The choice of several^ to form an intermediate 
 body of electors, will be much less apt to convulse the commu- 
 nity Avith any extraordinary or violent movements than the 
 choice of one, who was himself to be the final object of the 
 public wishes. . . . Nothing was more to be desired than that 
 every practicable obstacle should be opposed to cabal, intrigue 
 and cormption. These most deadly enemies of republican go- 
 vernment might naturally have been expected to make their 
 approaches from more than one quarter. . . . But the Con- 
 vention have guarded against all dangers of this sort with the 
 most provident and judicious attention. They have not made
 
 EXECUTIVE POWER. 259 
 
 the appointment of the President to depend on pre-exhting 
 bodies of men, who might he tampered ivith beforehand to pros- 
 titute their votes, but they have referred it in the first instance 
 to an immediate act of the American people, to be exerted in 
 the choice of persons for the temporary and sole purpose of 
 making the appointment. And they have excluded from eli- 
 gibility to this trust all those who, from situation, might be 
 suspected of great devotion to the President in office. No Sena- 
 tor or Representative, or other person holding a place of trust 
 or profit under the United States, can be of the number of the 
 electors. Thus, without corrupting the body of the people, the 
 immediate agents of the election will at least enter upon the 
 task free from any sinister bias." 
 
 These passages, whilst they indicate a full sense of the dan- 
 gers of a i^opular election, show also how much the Conven- 
 tion trusted to the electoral body they had provided, as a re- 
 straining influence upon the rash impulses of the masses, and 
 a discriminating power to winnow their opinions from the chaff 
 of ignorance, folly and passion. They prove, also, that the 
 Convention had before their minds the English Ministry as 
 their model, and followed it as closely as they could with the 
 materials at their disposal. They endeavored to place the 
 power of choosing the chief Executive officer in hands ele- 
 vated as far as possible above intrigue, corruption, and party 
 spirit, and at the same time to subject him to the indirect con- 
 trol of the people. They failed, and their failure is a signal 
 instance of the impotence of a written Constitution that does 
 not accord with the spirit and tendencies of the people, — of the 
 certainty that it will become the instrument of these. 
 
 It is surprising that the Convention did not foresee the fail- 
 ure of their plan, as the expedient, immediately adopted, of 
 choosing electors pledged to support a particular candidate, 
 was so obvious that it might well have been anticipated. The 
 Constitution had scarcely been set in motion, before the elec- 
 tors became a mere form, chosen without the slightest reference 
 to their character, and exclusively as the organ of the popular 
 will. They have no power of deliberation or choice Avhatever, 
 and their sole province is to register the popular vote.
 
 260 THE TRIAL OF THE CONSTITUTION. 
 
 This conservative element of the Constitution has thus been 
 utterly abolished, and our history shows, that every evil and 
 danger against which it was intended to guard, has occurred. 
 President-making has become the vice of our politics, a moral 
 nuisance and calamity to the nation. It is the trade of a vast 
 number of energetic and clever men scattered throughout the 
 country, trained to the business, and accomplished in all its 
 mysteries. It goes on without cessation or pause all the time, 
 waxing in eagerness, bustle and fury as the time of choice 
 draws near. A successful candidate is scarcely installed ere 
 the o;ame for the succession commences. Parties muster their 
 forces, prepare their " platforms," invent their "■ cries," fabri- 
 cate their fallacies, appoint their agitators and indicate their 
 candidates. As time advances all the arts of the demagogue 
 are put in requisition. Itinerant speakers fulmine through 
 the land. The press pours forth its constant fire of argument 
 and appeal, corruption does its secret work, and when the day 
 of trial comes, the ballot-box manipulator plies too often his 
 skilful finger, and the rowdy club domineers sometimes over 
 the hustings. It is an animating spectacle, with much of evil 
 in it and much of good. Such a contest elicits a vast amount 
 of able discussion, and through the press increases the power 
 of enlightened opinion. It develops talent in evei'y class of 
 life, educates the people to habits of thought on important 
 questions, and inspires them with the sense of personal con- 
 sequence and self-respect, caused by a participation in the con- 
 trol of great public interests. 
 
 It is easy to imagine a community so intelligent and moral, 
 as to be able to pass safely through such oft-repeated ordeals. 
 In many parts of our country this ideal state really exists, but 
 not in all, not especially in great cities, the centres of wealth, 
 population and power. The dangers of such a contest are 
 likely to increase with numbers, with the augmenting bulk of 
 the interests of classes and sections, with tlie momentum of 
 the masses set in motion, and with the steady growth of igno- 
 rance, pauperism and crime, for these do grow Avith fearful 
 speed in the midst of our fair and advancing civilization. We 
 are now thirty millions, supposing we can retain the South.
 
 EXECUTIVE POWER. 261 
 
 In a little while we shall be fifty or sixty millions, with all the 
 enormous accumulation and variety of interests which our rapid 
 pace in prosperity implies. An election by universal suffrage, 
 every four years, by sixty millions of people, divided into par- 
 ties by conflicting interests and principles, with their passions 
 sedulously fanned into flame by ambitious leaders, is a spec- 
 tacle that staggers the imagination. It may be among the 
 possibilities of the future, a triumph reserved for improved 
 culture and knowledge, but the past offers no such example. 
 
 The election of a President directly by the people, was not 
 intended by the Convention. They provided the shield of the 
 electoral colleges for the express purpose of preventing it. The 
 frustration of their design has proved the means of defeating 
 their intention in another provision of the Constitution, and 
 of thus bringing to bear upon a Presidential, and indeed, all 
 other elections, a tremendous engine of corruption, which in- 
 creases their danger a hundred fold. The power of appoint- 
 ment to all offices of Government is conferred on the President, 
 subject to the confirmation of the Senate. The poAver also of 
 removing from office without consulting the Senate, was soon 
 claimed and obtained by the Executive, though not conferred 
 by the Constitution, and thus the patronage was greatly in- 
 creased, and Congress, also in violation of the Constitution, 
 exposed to its corrupting effects. Practically the President 
 exercises the whole patronage of the Government. The Con- 
 vention intended to bestow this immense and ever growing 
 influence on a President chosen by boards of electors, whom 
 they guarded in every possible way from that influence. But 
 the electors turned out to be a nullity. For them the masses 
 of the people have been substituted, and upon these the whole 
 blighting force of the patronage can be exercised, and there 
 is nothing in the Constitution to prevent it. 
 
 The temptation has proved too great to be resisted. The 
 patronage has been used to control elections without scruple, 
 shame, remorse or moderation. It has become a settled prac- 
 tice so to employ it, which time and skill have organized into 
 an elaborate system of corruption, that pours its poison not 
 only in broad streams among the superior classes, but by little
 
 262 THE TRIAL OF THE CONSTITUTION. 
 
 rivulets into every nook of society, for a vote is a vote, whether 
 given by the high or the humble, and small offices are the 
 prize of the humble. The number of offices in the gift of the 
 President is not the true measure of the power of this formida- 
 ble instrument. The President who is in, uses it to retain his 
 place for himself or his party. The candidates use it to stimu- 
 late the efforts of their followers by promised reward. So 
 that each office influences at least two persons. To these 
 must be added two or three aspirants for each, and two or 
 three of the friends of each aspirant. As the Presidential 
 election is always the absorbing party question, it of course 
 controls the patronage of the State Governments and of all 
 municipalities, and decides the appointment not only of Cabi- 
 net ministers and foreign ambassadors, but of obscure post- 
 masters in log shanties of the West, and of policemen and 
 street-cleaners in the cities. " To the victors belong the 
 spoils," has become the established maxim of party politics, 
 and it is unsparingly carried out. An immense force num- 
 bering hundreds of thousands, composed of office-holders and 
 office-seekers, organized, disciplined and trained for the Avork, 
 is thus enlisted for the express purpose of carrying the elec- 
 tion of a President. 
 
 Such a corps of mercenaries cannot be the best judges of 
 the talents and character required for the office, or very 
 scrupulous about the means they employ to gain their ends. 
 A wise choice and a fair election are not likely to be the re- 
 sult of such a system. Clearly it is a system not intended by 
 the Constitution. It has evil consequences, however, apart 
 from the injudicious choice of a President. It corrupts the 
 people by offering to many thousands sordid motives for wluit 
 should be a moral act, by lowering the standard of public 
 virtue, and by introducing the contagious example of dis- 
 honesty in high station. Such things cannot be done with 
 impunity, and we see the consequences in a flood of corrup- 
 tion that has inundated the Government, and which even the 
 high emotions and patriotic feelings called forth by a noble 
 cause and a great war cannot check. 
 
 Another curious result has grown out of the failure of the
 
 EXECUTIVE POWER. 263 
 
 board of electors to play their prescribed part. A clumsy 
 substitute for them has become necessary. The Convention 
 intended the people to elect a President, not directly but in- 
 directly, and they were wise in this, for other reasons besides 
 those already mentioned. That a President, or indeed any 
 other officer, should really be chosen by the people of a popu- 
 lous nation occupying a vast territory, is simply a physical 
 and psychological impossibility. The}'' cannot in the nature 
 of things spontaneously elect candidates, each man acting for 
 himself. There must be concert and conference. These 
 create parties, and parties must have managers, leaders, 
 organs who represent, guide and express opinion. Such 
 guides necessarily nominate the candidate of a party, and the 
 members of the party must vote for him, or for the candidate 
 of the opposite party, or not vote at all, although perhaps 
 many would gladly choose some one else. Hence, therefore, 
 a nomination by the stronger party is the real election, and 
 those who make the nomination are the true electors. 
 
 Out of this necessity, nominating conventions chosen by 
 the several political parties have grown up, and they do, in 
 fact, make our Presidents. These conventions perform practi- 
 cally the part assigned by the Constitution to the electors. 
 The latter were indeed intended to appoint a President, and 
 the conventions choose candidates only, but as the people must 
 vote for these candidates, or not vote at all, so far as freedom 
 of choice is concerned, the result is the same. In all other 
 respects, however, it is very different. 
 
 The nominating conventions are bodies unknown to the law, 
 and therefore uncontrolled by the law. They are surrounded 
 by none of the restraints that insure fairness aitd intelligence, 
 imposed by the Constitution on the electors. The conven- 
 tions are irresponsible bodies, chosen by no rules except party 
 rules. iSTo law prescribes the numbers or qualifications of the 
 members, or defines their powers and duties, or appoints the 
 time or place or manner of their election. No one neglects a 
 duty by omitting to vote for them. It is not always easy to 
 find out how or where or when to vote. To discover these 
 things, application must be made to the initiated. The con-
 
 264 THE TRIAL OF THE CONSTITUTION. 
 
 ventions meet when and where they please. They not only 
 nominate candidates, but they announce doctrines and princi- 
 ples on the most momentous national questions, which they 
 call platforms. Their decrees are of no legal authority, but 
 are yet of such force, that they must be obeyed on pain of 
 virtual disfranchisement. They so manage it, that a man 
 must vote for their nominees, or not vote at all, and vote for 
 all the dogmas of their platforms, or not vote at all. 
 
 It is their obvious policy, indeed, to put forth principles that 
 are generally acceptable to their party and candidates that 
 shall be available, that is to say, popular and likely to secure 
 the votes of their party. In this rude way the sense and 
 wishes of the people may get expressed and executed, though 
 inadequately. It constantly happens that some of the prin- 
 ciples of a "platform" are distasteful to many, who must, 
 nevertheless, swallow them or give up those which they do 
 approve, and more often, that the men nominated are disliked 
 by numbers who must, nevertheless, accept them or refuse to 
 support by their votes their most cherished opinions. It 
 thus happens that the sanction of a majority is given to men 
 and measures which a portion only of that majority approve. 
 
 It may be said, indeed, that these defects are incident to 
 any mode of ascertaining the wishes of the people, for proxi- 
 mate results can be expected only, and that the plan pre- 
 sented in the Constitution would have been liable to the same 
 objections. True, perhaps to the same, though not to the 
 same extent. The electors are voted for by the whole people. 
 Their power and duties are defined by the law and their mem- 
 bers amenable to the law. Cei'tain classes of persons cannot 
 be chosen. They are not like the nominating conventions, 
 irresponsible conclaves, surrounded by secrecy and mystery, 
 managed by politicians with private ends to serve, and thus 
 open to every sort of intrigue and mischievous influence, 
 against which the constitutional structure of the electors care- 
 fully provided. 
 
 The plan in the Constitution failed. It fell flat before the 
 democratic element of the country, because it apparently 
 witliheld from the people the direct choice of the President.
 
 EXECUTIVE POWER. 265 
 
 Another has been substituted for it, because apparently, it 
 gives the election to the people, though in reality it does no 
 such thing. Had the Constitution imposed on the electoral 
 colleges the duty of choosing candidates for the Presidency, 
 the plan would perhaps have been successful. There would 
 then have been an appeal to the people from tlicir decision, 
 and the electors, restrained from the abuse of power by the 
 careful provisions of the law, would have done what nominat- 
 ing Conventions now do, without such restraint. 
 
 We have had some experience of their operation. It can- 
 not be said that they have elevated the tone of our politics or 
 the character of our public men ; that they have exerted a 
 salutary influence on the morals or manners of the people, or 
 a wholesome control over the arts of demagogues and the 
 excesses of party spirit. Neither can we boast of the candi- 
 dates these President-making machines have nominated and 
 put in power. The very names of some of them have become 
 offensive, and very few of them have inspired confidence and 
 respect. It is not much to the credit of the nominating 
 machine that it ground out Mr. Lincoln, for it, at the very 
 same time, produced Mr. Breckinridge. Mr. Lincoln was an 
 accident, and the apparatus which turned up his name had 
 before given us Polk, Pierce and Buchanan. Mr. Lincoln 
 was not really chosen by the people, not even by those who 
 voted for him. After having been chosen by others he Avas 
 elected as the representative of certain opinions. Until he 
 was nominated, not one in a thousand ever heard of him, or 
 after he was nominated and elected, knew what manner of 
 man he was, until he made his inaugural speech. Then, in- 
 deed, he revealed himself, much to the relief of anxious multi- 
 tudes of his supporters. Before that, however, he had been 
 illustrious neither by important public services nor by the 
 display of shining abilities. Strangely enough it was for that 
 very reason that he was nominated, whilst Mr. Seward, whose 
 name was distinguished, whose eminent talents were known to 
 the country and who had long been the leader, if not the 
 creator of his party, was, for those reasons, dropped. A 
 capricious machine, one would say, this nominating Conven-
 
 266 THE TRIAL OF THE CONSTITUTION. 
 
 tion, and governed by mysterious principles, known perhaps 
 to those who work it, but to none others. Certainly it is not 
 one made by those who made the Constitution, or one they 
 would willingly have adopted. Surely, also, they never could 
 have anticipated its odd performances, if wo may judge from 
 the words of Hamilton, quoted above. How strangely they 
 sound to us now. 
 
 " It will not be too strong to say that there will be a con- 
 stant probability of seeing the Presidency filled by characters 
 pre-eminent for ability and virtue." 
 
 Is it possible to read them without shame and alarm ? The 
 nominating conventions have not only given weak and wicked, 
 and ignorant and foolish Presidents, but they have also given 
 us civil war, or rather, they gave us in Mr. Buchanan a 
 President who might have prevented a civil war, had he pos- 
 sessed the requisite honesty, ability and courage. His official 
 power was adequate to the purpose. But he was a mere 
 partisan. He owed his place to the rebels, their chief men 
 were his own trusted advisers and officers up to the moment of 
 turning against the Government, and he himself had diligently 
 fostered the pernicious crop of false doctrines and arbitrary 
 measures, which, under his auspices, ripened to a harvest of 
 treason. The seeds of that crop had been as diligently 
 planted and guanoed by his predecessor General Pierce. 
 General Pierce was also a product of the nominating machine, 
 chosen, too, because he was unknown to tlie people. 
 
 It is thus clear that the proper organization of Executive 
 power is a problem yet to be solved. We have abolished that 
 given to us in the Constitution, and our substitute has failed 
 to furnisli wortliy men for the office : it has been the prolific 
 source of corruption ; it has not saved us, when it might, from 
 sedition and civil war. Unless it can l)e altered and improved, 
 its dangerous tendencies will acquire force and impetus with 
 the increase of population, wealth, and national expenditure. 
 If eighty millions a year gave us the corruption of the last
 
 EXECUTIVE POWER. 267 
 
 adininistration, Avliat are two hundred millions likely to cause 
 hereafter ? Such a prize will not render the elections more 
 orderly or the councils of nominating conventions more pure. 
 We arc likely to have "military heroes" as aspirants for the 
 Presidency, and large armies either in the field or recently 
 disbanded ; and these facts do not diminish the perils of the 
 future. The past performances of nominating conventions 
 have not inspired the people with much respect, and it is 
 doubtful if they can be safely trusted hereafter. Unless in 
 some Avay the Executive power can be modified, there is rea- 
 son to fear that it may destroy the Government. It would be 
 wiser to change it, by taking thought beforehand, than to have 
 it changed by convulsive events. 
 
 If "\ve could be taught by present bitter experience a 
 more discreet use of the elective franchise, the present sys- 
 tem could be made to work well, as indeed any system 
 will work well, directed by an intelligent and virtuous people. 
 Nominating conventions might be made useful and safe rep- 
 resentatives of opinion, if the j)eople would determine that 
 they should be such. They have in them germs and pos- 
 sibilities of good, and even now are not wholly evil. Why 
 cannot they be regulated by law, and their mischievous ten- 
 dencies restrained ? They have become an institution of for- 
 midable power, and should therefore be made amenable to 
 legal authority. Perhaps this war may settle one essential 
 principle, — that the decision of the ballot-box must be sub- 
 mitted to. Perhaps public opinion, instructed by past enormi- 
 ties, may be able to control the gross abuse of Executive pa- 
 tronage, and require the nomination, by parties, of men of 
 ability and good character, — not of demagogues. But let us 
 avoid rash and sudden changes. Let us keep what we can of 
 the Avork of the Convention, and bring it back as near as we 
 can to what they intended. Should experience show that their 
 work is unable to satisfy our new wants, let us alter it with 
 reverential deliberation and care, and only where alteration is 
 necessary and when it is necessary. 
 
 Should our Union be restored, and this country become what 
 we hope and intend to make it, — a great Empire of republican
 
 268 THE TRIAL OF THE CONSTITUTION. 
 
 liberty, — some changes in the organic law of tlic Government 
 may be required. If civilization means anything, — if science 
 and literature, schools and a free press, and representative in- 
 stitutions have any virtue, — these changes will be made by 
 thought, and not by force. The necessity Avill invoke Ameri- 
 can ingenuity to invent an Executive machine that will supply 
 the American demand for order, libert}^ and national safety, 
 just as the size of the cotton crop created the cotton gin, our 
 immense grain-fields the reaper, our vast expanses of territory 
 the steamboat, the railroad, and the telegraph, and the exi- 
 gencies of the present war 'the Monitor and Merrimac, which 
 are destined to work as great marvels in naval warfare as the 
 former have done in commerce and the arts. Liberty, order, 
 security and national power we must have. Our Saxon na- 
 ture demands them all, and demands them all without Royalty 
 or regal splendor, hereditary rank or a privileged class. The 
 Enfflish have contrived o-raduallv to convert a feudal mon- 
 archy into a monarchical republic, and instead of a haughty 
 Henry VIII or imperious Elizabeth, live now under the mild 
 sway of an amiable and domestic Victoria, dressed in crino- 
 line, and a good-natured and harmless Palmerston, decorated 
 with red tape. In like manner, the genius of our kindred 
 race, stimulated by the needs of time, will surely be able so to 
 mould and modify the instrument of Executive poAver fashioned 
 for us by our fathers, that it may become strong enough for 
 our safety, yet not too strong for our liberty ; serviceable for 
 the public good, — not pliable, to serve private ends ; republi- 
 can, without the license of democracy ; steadfast, but not im- 
 movable ; and, whilst responsive to the sober tliought and ad- 
 vancing spirit of the age, firm to resist Utopian schemes of 
 change and the reckless passions of revolution.
 
 SLAVER Y. 2G9 
 
 CHAPTER IV. 
 
 SLAVERY. 
 
 Another novelty put by force of inexorable circumstances 
 into our Constitution was slavery, and not slavery only, but 
 the African slave trade. The latter was protected for twenty 
 years, the former forever ; and to render it secure was inter- 
 woven with the most important functions of government, with 
 representation and taxation. When the Constitution was 
 formed, slavery existed in nearly all the States ; but it was a 
 plant not suited to a Northern climate, and therefore it did 
 not flourish in the North. It did suit the South, because the 
 climate suited the negro. He grew there with prolific luxu- 
 riance, as he did in his native Africa. The hot sun of the 
 South, which invigorated the black race, weakened the white, 
 indisposed it to labor, made it willing to be labored for and 
 served. Having the intellectual superiority and force of cha- 
 racter, and thence the power, the white man made the black 
 his servant. Out of the toil of the negro, grew the wealth of 
 the South, and out of his natural, and therefore permanent, 
 inferiority to the white man, coupled with his docility, grew 
 up the structure of Southern society. The material prosperity 
 of the South, its manners, habits, institutions and essential 
 conditions and characteristics, were thus, then as now, founded 
 on slavery and the negro, and on slavery because of the negro. 
 
 A government, therefore, for the Union that did not give 
 some sanction and protection to slavery was impossible. On 
 no other terms would all of the Southern States have entered 
 the Union. They were not content even with slavery, but, 
 wanting more negroes for their extensive tracts of fertility, 
 stipulated for the privilege of importing slaves from Africa 
 for a limited period. They Avould not be refused, and could
 
 270 THE TRIAL OF THE CONSTITUTION. 
 
 not without giving up the Union, so imjjortant to the safety * 
 and interest of both North and South, and the hopes so dear 
 to both of founding a great nation. The terms of the South 
 were granted, but Avith mucli reluctance. It was difficult for 
 the leading minds of the Convention to accept slavery as part 
 and parcel of a Constitution intended to establish freedom, or 
 to blot and blemish it with a thing so odious as the slave trade, 
 then beginning to attract the indignant notice of advancing 
 civilization. 
 
 The slave trade regarded negroes as merchandise, and so 
 did the laws of the South ; but the former, besides its atten- 
 dant barbarities, converted freemen into slaves, whilst the 
 latter merely prevented slaves from becoming freemen. Hu- 
 manity and the North gained a qualified triumph b}^ the clause 
 in the Constitution providing, by implication, that the Go- 
 vernment may (not shall) prohibit the importation of slaves 
 after the year 1808. Slavery was accepted per force, yet 
 what could be done was done to deprive it of its most repulsive 
 feature, and to clothe its ugly nakedness in the decent robes 
 of humanity and justice. Slaves were called "persons" in 
 the Constitution wherever alluded to, and this word, both in 
 its technical and popular meaning, is used in opposition to 
 things and excludes the idea of property. The Convention 
 did not mean expressly to exclude that idea, for slaves, even 
 as property, are persons held to service, but they used lan- 
 guage applicable to them both as property and as men, but 
 more peculiarly and properly applicable to the relation of 
 master and servant for life, which is a very diiferent thing in 
 its moral aspect and legal consequences, in its influences and 
 its results, from the relation of owner and thing owned, which 
 is the principle of the slave trade and of Southern laws. 
 
 With difficulty did our fathers yield to expediency and 
 bring tliemselves to deface the fair Constitution they were 
 writing, l)y jn-ovisions to protect and perpetuate human bond- 
 age. Their repugnance is shawn by the words they employed. 
 Nowhere is slavery mentioned, or property in slaves or the 
 negro race. A stranger to the history of the Constitution 
 could never gather from any of its phrases that either of these
 
 SLAVERY. 271 
 
 were referred to or had existence in the country. In the 
 chxuse esta])lishing the ratio of taxation and representation, 
 after an enumeration of different classes, slaves are spoken of 
 as "all other persons." In the section forbidding the pro- 
 hibition of the slave trade before 1808, the slave hunt in 
 Africa, the warfare of savage tribes to supply the market, the 
 horrors of the middle passage and the revolting scenes of the 
 slave auction, are all decently draped in these words : " The 
 migration or importation of such persons as any of the States 
 now existing shall think proper to admit." The provision for 
 the return of fugitive slaves, describes the slave as a "person 
 held to service or labor," and his master as "the party to 
 whom such service or labor may be due." No one could tell 
 from the Constitution itself that the word person, in either of 
 these cases, meant negroes or slaves, except, perhaps, in the 
 first, where persons "bound to service" for life are implied. 
 The fugitive slave clause applies as well to apprentices, and 
 under it possession of apprentices has been and may be re- 
 covered. 
 
 These ambiguous phrases were not used without a motive. 
 They express the truth, then dawning on this subject, that as 
 by the hiAvs of nature there can be no such thing as property 
 in man, so neither can there be by human laws. That the 
 relation of master and slave is the relation of a man to a man, 
 not of a man to a thing, and therefore imposes on the master 
 duties and confers on the slave rights Avhich, though he be a 
 negro, a white man is bound to respect. 
 
 All the provisions in the Constitution in favor of slavery 
 and the slave trade, were inserted to secure the adhesion of 
 South Carolina, North Carolina and Georgia to the Union, 
 and this reason was expressly stated in the debates of the Con- 
 vention. Aversion to slavery was openly avowed, and though 
 it-was thought better to admit it than to exclude those States, 
 Mr. Sherman and Mr. Madison declared it was wrong to use 
 any language in the Constitution which implied that there 
 " could be property in men." Most of their eminent contem- 
 poraries disapproved of slavery, lamented its existence, and 
 looked forward hopefully to the day when it would disappear.
 
 272 THE TRIAL or THE CONSTITUTION. 
 
 Believing that it avouIcI be temporary, and hoping that the 
 Constitution they were making Avould be permanent, they 
 •wished it to descend to posterity Avithout any visible stain to 
 show the compromise they Avere forced to make Avith Avhat they 
 felt to be Avrong. 
 
 They made a mistake. Do justice though the heavens fall. 
 The Gods take care of the consequences of good deeds. The 
 moral hiAvs of the universe are on the side of the right, and the 
 paths of truth, though apparently they lead through morasses 
 of difficulty and rocky passes of danger, conduct us surely in 
 the end to the promised land of safety and success. The Con- 
 vention ought not to have violated conscience for the sake of 
 the Union. They ought not to have given to slavery and the 
 slave trade, seeing that they disapproved of both, the influence 
 conferred b}^ their sanction. These Avere both put into the 
 Constitution, and sugar-coated as they might be b}^ the de- 
 corous phrases used to describe them, their adoption implied 
 approbation, and this was not true but false. They were not 
 approved, either of them, but though the debates say so, the 
 Constitution does not say so. The Convention was employed 
 in a task that, from its nature, can rarely be the privilege of 
 any assembly of men. They Avere founding a nation. They 
 were building a government to endure for ages, the sheltering 
 house and castle of posterity. Their hands Avere clean, their 
 hearts Avcre pure from selfish motives, but the accomplishment 
 of their great purpose Avas a temptation too great for them. 
 They could not bear to see it fail, and tlK\y hoped to secure its 
 success by rejecting truth for one of its corner-stones and sub- 
 stituting a falsehood in the place of truth. They rejected 
 freedom and they put in slavery, and Avorse than slavery, and 
 they proclaimed to the world that they approved of slavery 
 and the slave trade, Avhich (pardon me, ye venerable shades,) 
 Avas not the truth, but a lie. And Avhat has been the consQ- 
 quence ? The )-ejected stone has been a stumbling-block in 
 our path ever since, over Avhich Ave have at length fallen, and 
 the inserted stones have crund^led to poAvder, so that the edi- 
 fice has settled on one side, its Avails are cracked and rent, and
 
 SLAVERY. 273 
 
 the whole structure threatens to fall "in ruin with thunder" 
 to the ground. 
 
 Wonderful is the action of Nemesis in human affairs. Sla- 
 very was accepted by the Convention for the sake of the Union, 
 and slavery has assaulted the Union. Chiefly to propitiate 
 South Carolina and Georgia was the sacrifice made, and South 
 Carolina led the attack, followed immediately by Georgia. 
 
 Had the Convention sternly prohibited the slave trade, and 
 refused to invest slavery with any power or influence, leaving 
 it wholly to State laws, what evils, crimes and perils we should 
 have escaped ! It would have been better to allow South Caro- 
 lina, North Carolina and Georgia to remain out of the Union 
 forever, if they chose, though they would have been glad enough 
 soon to come into it. The increase of the negro race in the 
 South would not have been stimulated by twenty years of im- 
 portation from Africa, the maxims and habits of that trade 
 ceasing with it, slavery most probably would have been softened 
 into a really domestic institution, and slaves have been regarded 
 as men, not as merchandise. Probably also the Border States 
 would, ere this, have followed the example of Northern eman- 
 cipation, to which their climate and soil invite them, and sla- 
 very would never have risen into an overgrown, bloated power 
 in the country, arrogantly claiming the right to rule or the 
 right to destroy it. 
 
 It must be said in excuse for our ancestors, that though 
 against their convictions of right they established slavery by 
 the Constitution, they expected confidently that slavery would 
 at some future day be abolished. This opinion and hope were 
 by no means confined to the North, but were shared very gene- 
 rally by Southern slave-owners, who were the leading men of 
 the Revolution. One of these was Washington. Their notions 
 on the subject, however, were not very well defined or founded 
 on adequate knowledge. Vague ideas of emancipation, amal- 
 gamation and colonization floated before their minds. The 
 science of ethnology had not been born in their day, by which 
 the nature of the negro and his true relation to the white man 
 have been revealed. The laws of race render his equality with 
 the latter by means of education impossible, and forbid amal- 
 
 18
 
 274 THE TRIAL OF THE CONSTITUTION. 
 
 gamation under penalty of degradation and degeneracy for the 
 white. The same laws destroy all hope of colonization. The 
 African has found in the semi-tropical climate of our Southern 
 States a congenial home, grows there and multiplies faster 
 than the Saxon, and his numbers speedily outstripped the means 
 of the Government to send him away. The negro, moreover, 
 has his affections. His attachment to place and the scenes of 
 youth is strong. He loves his native land, which for those 
 born here, is not Africa. He Avould not willingly go back to 
 Africa. Force must be used to send him back, as force was 
 originally used to bring him here, so that to export the negro 
 would be almost as barbarous as it was to import him. Our 
 ancestors therefore did not foresee that the negro race, for good 
 or for evil, had seized upon a portion of this country as their in- 
 heritance forever. That in seventy years they would be four 
 millions strong, and would go on to multiply with such rapidity, 
 that before the Constitution was a century old, it might be- 
 come a question which race is to possess the South, the white 
 or the black. 
 
 Neither could any experience at that early day teach the 
 Convention the lesson we have since learned of the contamina- 
 ting influences of an inferior race. How it must in some way 
 be held in subjection, and therefore irresponsible power, with 
 all its baneful moral effects, be exercised by the superior race, 
 producing thus a rank growth of cruelty, tyranny, arrogance, 
 pride, sensuality and sloth ! How a population semi- African 
 must be semi-barbarous, and can make but slow progress in 
 the arts, the industry, the science, the wealth and the power 
 of civilization. Had our fatliers when anxiously laboring for 
 the future, seen painted upon it this fearful vision, would they 
 not have said : " Let us erect what barriers we can, not against 
 slavery, but against Africa. If this conquering negro race be 
 so formidable because of its weakness, its unteachable igno- 
 rance, its tame docility ; if thus armed with power to blight 
 morals, to unnerve industry, to wither the intellect, and to 
 blast, like the sirocco of its native deserts, the fair promises 
 of culture and civilization ; if it be irrevocably planted in our 
 country, let us at least confine it in as narrow limits as we
 
 SLAVERY. 275 
 
 can, and give what we can of our wide domain to the Saxon, 
 and thus to progress in science, to freedom and Christianity, 
 Let us import no more negroes. Let us discourage shivery, 
 if that will check the growth of Africa in America, and if 
 South and Xorth Carolina and Georgia prefer slaverv and 
 Africa to the Union, let them depart, and enjoy both in 
 peace." 
 
 Another thing not dreamt of in the philosophy of the Con- 
 vention, yet destined to exert a powerful influence upon sla- 
 very, and through it upon the nation, was the cotton crop. It 
 was found that the South contained the richest and most ex- 
 tensive tracts of cotton land in the world. Where cotton 
 flourishes, so does the negro, but the strength of the white 
 man is weakened by the climate. The cotton gin, invented 
 by a New Englander, appeared, as such things do when 
 needed, and enabled the planters to furnish the world with 
 an article that soon increased the demands of commerce and 
 manufactures by supplying them, and became in a few years 
 the basis of an immense agriculture and an immense trade. 
 Whilst the cotton gin enriched the South, it made cotton the 
 sole foundation of its prosperity and power. With the value 
 of cotton rose the value of negroes. Slavery thus formed an 
 alliance not only with land as before, but with capital, through- 
 out the civilized world, wherever looms, spindles and ships ex- 
 isted. When importations from Africa were forbidden, the 
 price of negroes rose enormously in the Cotton States. To 
 supply their market, the Northern Slave States became 
 breeders of negroes, with large gains, much needed by the 
 owners of worn-out lands, especially in Virginia. The mer- 
 cenary element of slavery thus became predominant. Plans 
 of emancipation that had been proposed and discussed Avere 
 immediately laid aside, and slavery was fastened upon all 
 parts of the South by fetters of gold. The South without 
 cotton would be weak and poor. Cotton without negro labor 
 Avould be impossible. The negro, therefore, and slavery, the 
 one incapable of high civilization, and the other inconsistent 
 with it, became the foundation-stones of the edifice of Southern 
 society.
 
 276 THE TRIAL OF THE CONSTITUTION. 
 
 Whilst slavery thus grew stronger and stronger in the 
 South, an enemy destined to cope Avith it and perhaps finally 
 to destroy it, was growing in the North. The advancement 
 of society in the useful arts and in wealth, brings with it the 
 increase and diffusion of knowledge, and as a consequence, 
 higher views of duty, and a finer sense of humanity. By this 
 process government has been made free, laws robbed of cruelty, 
 manners softened, and many practices once universal have 
 come to be regarded as barbarisms of the past. About the 
 time that our Constitution was adopted, the attention of the 
 English Government and people was directed by a few earnest 
 minds to the enormities of the slave trade. It was condemned 
 as inconsistent with the intellectual culture and Christian 
 morality of the countiy. These men were denounced and 
 ridiculed as fanatics by the intei'csts connected with the trajBBc, 
 by the rich and noble, by the worldly and thoughtless, just as 
 Abolitionists are denounced and vilified here now. But the 
 fanatics were not discouraged. Though before their age, they 
 were not so far before it that it could not follow their lead. 
 Their words did not fall on barren minds and stony hearts, 
 and though they fell among weeds and briers, the soil was 
 good, and the divine seeds of justice and humanity took root, 
 and sprung up into a crop that proved too strong for the weeds 
 and briers. The result was, that the slave trade was abolished 
 in England, and the same causes also operating here, it was 
 abolislied by Congress, as soon as the period appointed by the 
 Constitution for its continuance expired. 
 
 It was impossible to condemn the slave trade, Avithout in 
 some degree condemning slavery. If it be wrong to make men 
 slaves, why is it not wrong to keep them such ? If it be wrong 
 to rob men of themselves, and make them merchandise, why 
 is it not wrong to buy and sell and use them as merchandise, 
 not for their good, but for the profit of the owner ? "Wliatever 
 may be thought of this argument, moral sentiment and benevo- 
 lent feeling were revolted and wounded alike in both cases, 
 though not in the same degree. Success inspired hope, and 
 led the reformers on to liigher achievement. The movement 
 had commenced, it was not suffered to flag, and being un-
 
 S L A V E 11 Y. 277 
 
 clieckcd by the hindrances of necessity, interest, manners and 
 habits, either in England or in onr Northern States, slavery 
 ere long was abolished by both. These triumphs however did 
 not satisfy either the opinion or the feeling that had gained 
 them, which grew by indulgence. 
 
 The power of these forces was shown in the attempt to pre- 
 vent the extension of slavery in this country, and they gained 
 a partial victory by the Missouri Compromise. The reason- 
 ing on which that measure was founded applied also to slavery 
 in the States. Unless slavery be an evil and a wrong, why 
 prohibit it anywhere ? or if it be both, why permit it ? It is 
 protected by the Constitution, was the answer. "But," said 
 the reformers, "what are Constitutions compared to dut}^? 
 Man's allegiance is due to something higher than the Consti- 
 tution, which, if it command injustice, ought either to be 
 altered or disobeyed. At least, let Government do what it 
 can to clear the nation of this iniquity. Let it prevent the 
 spread of slavery. Let it rescue from its blighting curse 
 all the Territories, and the millions that are to make them 
 populous. Let the Federal Capital be freed from so foul a 
 scandal." 
 
 The motives of these pioneers Avere honest. They were 
 governed, not by selfish interests, but by an idea, armed with 
 which they ventured to attack selfish interests. They, too, 
 declared that there could not be property in men. Subjection 
 and servitude are, indeed, outgrowths of the negro's nature, 
 as cotton is of the Southern soil, and are some, only, of the 
 poisonous African fruits brought here with the negro. But 
 chattel slavery is a different thing, and is not necessary. The 
 zeal of the Abolitionists was contagious. They gained hearers 
 and followers. They created a mass of opinion, which, as it 
 waxed in strength, attracted the notice of the demagogues, 
 who seized on it with avidity as political capital, as they ap- 
 propriated and used slavery, its interests and its passions, — 
 as they would seize on a piece of popular sentiment in favor 
 of Mormonism, Mahometanism, or the worship of Jugger- 
 naut. Thus Abolitionism, commencing with the enthusiasm 
 of a few, and stimulated by the sympathy of the like-minded
 
 278 THE TRIAL OF THE CONSTITUTION. 
 
 and bv the perseciition of enemies, throve, until at length it 
 was marshalled and drilled by expert partisans, and became a 
 political power, though a weak one. 
 
 The Southern people soon took the alarm. They saw that 
 the fated hour was approaching, for their deadliest foe, — an 
 idea, — had arrived, and they felt like rats in a barn when it 
 is entered by a ferret. All material interests, — all worldly 
 passions, — they had skilfully arrayed on their side. The for- 
 bearance of Europe was secured by cotton. The good will of 
 the conservative interests of the North was gained by the inte- 
 rests of manufactures and commerce. The dangerous demo- 
 cracy, whose vital principle is so flatly contradicted by sla- 
 very, was entrapped by offering to it the delights of victory, 
 and to its leaders the bribe of office and emolument. 
 
 Bnt selfish interests do not rule the world, in the long run, 
 though they may triumph for a season. The anti-slavery sen- 
 timent increased, and with it advanced with rapid strides the 
 power of the North. Africa and cotton were no match for 
 freedom, civilization, and the energetic genius of the Saxon 
 race. In numbers, in all arts, in education, in wealth, in ma- 
 terial resources, it soon became apparent that the strength of 
 the country was with the North, and therefore that the North 
 must rule. The position of the Southern people was not 
 pleasant or hopeful. They beheld banded against them the 
 opinion of the civilized world, and in the ranks of that hostile 
 array they saw a portion of their own countrymen determined 
 to destroy them. Their pride was insulted, their sensibilities 
 were wounded by the incessant agitation of the subject of sla- 
 very. As it had become an element of party politics. Congress 
 and the daily press rang with it, whilst a constant warfare 
 was maintained by volleys of lectures, speeches, pamphlets, 
 novels and periodical literature, grave and gay, in which sla- 
 very was held up to the execration of mankind as an abomi- 
 nation and a crime, and the Soutliern people described as 
 rapidly sinking, because of it, into a slough of degradation 
 and decay. Indignation and alarm greatly exaggerated both 
 the force and the designs of the anti-slavery sentiment of the 
 North, and imagination, artfully stimulated by political mana- 
 
 I
 
 SLAVERY. 279 
 
 gers, painted the danger in colors and proportions far beyond 
 the reality. 
 
 Thus excited, the South became thoroughly sectional. All 
 thoughts and all passions centred in slavery, because on it 
 their social system and property rested, and because it was 
 menaced with destruction. How to meet the danger, was the 
 difficult question. To their vision only two paths of safety 
 remained open, — political equality with the North, to be se- 
 cured by new Slave States carved out of the National Terri- 
 tory and out of Southern regions to be gained by conquest, 
 and, should that fail, a separation from the Union. 
 
 For the success of the first they depended on their old ally 
 the Democratic party. But they knew that however staunch 
 and true the leaders of that party might be, and however well 
 drilled and obedient a large portion of it, yet no political 
 party is a constant quantity. Democracy itself might become 
 infected Avith the poison of Abolitionism, and its ranks be 
 thinned by desertion. What then can we do ? Shall we sub- 
 mit to be ruled by our enemies, — to hold forever a position of 
 inferiority, — to be a mark for the arrows of scorn, hemmed in 
 on all sides by a cordon of free Saxon industry, and sure to 
 grow weaker and weaker every day, in comparison with our 
 strong and arrogant neighbor ? We cannot stand this. We, 
 too, are of Saxon blood. W^e have broad lands and fertile ; 
 we are rich and powerful ; our cotton is necessary to the com- 
 merce of Europe, and will secure for us the alliance and pro- 
 tection of its chief nations. It has come to this. Because of 
 slavery, we must either rule the nation or become ourselves a 
 nation. 
 
 How the Southern people endeavored to carry out this 
 scheme the history of the recent past and of the present 
 moment will show, and to what fatal excesses they were led 
 by the passions engendered by the contest. The Mexican 
 war, the Ostend conference, the attempt to acquire Cuba by 
 purchase or conquest, fillibusterism, the attacks upon Nicara- 
 gua, and the open encouragement and aid given to the bucca- 
 neers Lopez and Walker, mark their efforts to acquire a 
 foreign area for slavery. The attempt to secure the national
 
 280 THE TRIAL OF THE CONSTITUTION. 
 
 territories was made in Kansas, and the border warfare waged 
 against its people, the territorial legislature imposed on them 
 by force of arms, the Lecompton Constitution .nought to be 
 thrust upon them by force of law, and the Dred Scott decision, 
 will remain in our annals proofs of the fanatical desperation 
 of the South, and of the enormities that may be committed 
 with the sanction and aid of a free government in a civilized 
 age and country. 
 
 All these efforts failed. We acquired, indeed, a large tract 
 of land from Mexico, but it increased the power of the Korth ; 
 for it is not, and never can be, the home of slavery and the 
 negro. The sentiment of the nation rose against fillibus- 
 terism ; it could not be established as one of our institutions; 
 it slowly receded, with its heroes, from view, and Cuba and 
 Nicaragua were left in peace. The effort to secure Kansas 
 was not only unsuccessful, but it overturned the Democratic 
 party, and led to the election of Mr. Lincoln, a Northern man, 
 by the vote of the North. 
 
 It was evident that the South could no longer govern the 
 country. The sceptre had passed from their hands, after the 
 wont of sceptres, to the place where it belonged ; that is, to 
 superior power. The time had therefore arrived when, if 
 ever, the alternative part of the Southern plan must be exe- 
 cuted; and the Southern men were not wanting to the occa- 
 sion. The period was auspicious. The Democratic party 
 "was in power ; the President, a friend and agent of approved 
 fidelity. The chief offices of the Government were filled by 
 Southern men. Much might be done during the few months 
 of Mr. Buchanan's term, if the time was well employed. 
 These advantages and opportunities were not neglected. The 
 Government was stripped of its means of defence by the offi- 
 cial authority of men who, at the time, were eating its bread, 
 and who had sworn to obey it. In a whirlwind of passion, 
 raised by the arts of politicians, State after State was precipi- 
 tated into the measure of secession, with a haste that proved 
 how much the leaders of the movement feared the sober re- 
 flection of the people. Forts, arsenals, navy-yards, mints, 
 custom-houses, were seized by force; and when Mr, Lincoln
 
 SLAVERY. 281 
 
 arrived in Washington, he found rchellion mustering its 
 forces, which had been equipped with arms plundered from 
 the Government by its own officers. 
 
 Meanwliile these proceedings had been making their appeal 
 to tlie hearts of tlie Northern people. They were at first 
 incredulous. It was difficult to believe that the Aveak South 
 would venture to provoke a contest with Northern strength, 
 or that any portion of this happy and prosperous country 
 would be mad enough to at!empt the overthrow of a Govern- 
 ment which had been the source to all of nothing but benefits. 
 As however the ncAvs spread into the country, away from the 
 great cities, among the hills and valleys, the farms and vil- 
 lages, the spirit of the North became deeply stirred. The 
 sentiment of nationality was roused, and the fii"es of patriotism 
 spread swiftl}^, kindling all hearts, and waiting only an occa- 
 sion and a signal to burst forth in the majestic wrath of a 
 generous and insulted people. At length the audacity of the 
 South culminated in the attack on Fort Sumter; and the 
 cannon which they then dared to fire on the symbol of our 
 country and of liberty, like the rifle volleys at Bunker Hill, 
 struck a solemn and memorable hour on the great bell of 
 time. As the latter proclaimed the birth of a great nation, 
 so the rebel guns sounded the era of its regeneration. 
 
 How the President proved equal to the emergency ; in 
 what firm, grave, and temperate language he appealed for 
 support to the people, and how gloriously they rallied round 
 their flag, need not be told here. Neither is it my province 
 to relate the incidents of the war. How, by miracles of 
 energy and untaught ability, an army and navy were impro- 
 vised and equipped out of nothing; raw recruits suddenly 
 converted into ranks of soldiers, and able generals brought 
 forth from the peaceful pursuits of business ; or how, after a 
 few checks and reverses, the power of the North has prevailed, 
 and the rebels are now retreating before its victorious ban- 
 ners.* Whether victory will continue, or can restore the 
 Union, cannot be foretold. This much, however, is certain; 
 
 * May 9th.
 
 282 THE TRIAL OF THE CONSTITUTION. 
 
 all the calculations of the Southern politicians who plotted 
 this rehellion, have so far proved false. They could not 
 secure the adhesion of the Border States, nor the alliance and 
 aid of Europe. They have revealed the gigantic bulk and 
 force of the Northern power which they ventured to provoke. 
 They have renovated and united the national spirit of the 
 Northern people. They have brought defeat and the desola- 
 tion of war upon their own section ; and that section must 
 now take, either in or out of the Union, a position far less 
 powerful than it had before. 
 
 The Southern people were guilty of fatal mistakes from the 
 beginning. They greatly exaggerated their own importance 
 and 2)ower, and did not appreciate at all the power of the 
 North, arising, not alone from numbers and vast material 
 wealth, but from the intellectual and moral forces generated 
 by freedom, universal comfort, and education. As little did 
 Southern men understand the true state of opinion in the 
 North, which, though averse to slavery and to its extension, 
 was also willing and determined to yield it all its constitu- 
 tional rights. Exasperated by the torrents of argument and 
 invective poured on them by the Abolitionists, they either 
 could not or would not see, that these formed a small sect 
 and a small party, and that slavery, guaranteed by the Con- 
 stitution, was also amply protected by the patriotism, the 
 good-will, and the interests of the Northern people, who loved 
 and valued the Union, and for its sake were willing to tolerate 
 and maintain slavery. Neither could they see that these were 
 the only defences that slavery had in the world. Moreover, 
 slavery had become the chief element of power to a great and 
 generally victorious political party, who were determined to 
 defend it, riglit or wrong, at all hazards. So far, therefore, 
 from being in danger, — at least immediate danger, — from 
 Northern opinion, Northern liberty, free thought, free speech, 
 and a free press, were menaced by slavery. Fortunately, 
 however, the Southern politicians saved us from tliis peril. 
 No ingenuity could have devised a plan better fitted than that 
 which they adopted to make the North abhor slavery, and the 
 arrogant dictation of the South. They have associated both 
 
 I
 
 SLAVERY. 283 
 
 forever Avith ideas of cruelty and tyranny, perfidy and trea- 
 son. Kansas and Sumter will henceforth signify deliverance 
 from these. 
 
 We have seen that slavery was put by force of circumstances 
 into the Constitution, and that it has been the cause of a bold 
 attempt to overthrow the Constitution. On this point, also, 
 the Constitution is therefore on its trial. Are Union, the 
 Constitution and slavery, things that can be combined into a 
 harmonious whole, such as we can call a country and a Go- 
 vernment ? Should our victorious flag again fly over every 
 part of the South ; should the armies of rebellion be dispersed 
 and the mock government of the " Confederate States" be 
 convicted of being a lie and a sham, what shall we say about 
 slavery to the deluded, devastated Southern people, when we 
 invite them to return to their allegiance, when we tell them 
 the Union has never been broken ? 
 
 The question is difficult, and different views of it have 
 powerful advocates in and out of Congress. It is said by 
 some that, as slavery is the cause of the war, if we bring back 
 slavery with the Southern States we shall bring back all the 
 old issues, and with them strife, sedition, perhaps another 
 war. These men, therefore, propose a sweeping act of eman- 
 cipation as a war measure whilst we have the opportunity, 
 since when the war is over, if the South returns, slavery will 
 be protected by the Constitution. Let us now, they say, do 
 justice to the negro, gain for our country the respect of the 
 world, and destroy forever this hydra, the cause to us of so 
 many calamities. Let us not scotch the snake but kill it. 
 
 To this policy, however, although justifiable by the laws of 
 war, there are objections. It would be difficult, if not impos- 
 sible, of execution, except by means of an armed force through- 
 out the South. A mere military proclamation of liberty to 
 the negroes the Southern people would, of course, disregard, 
 and it could have no eff'ect after peace, unless, indeed, its
 
 284 THE TRIAL OF THE CONSTITUTION. 
 
 moral effect on the slaves should destroy slavery, or unless its 
 destruction should be made one of the conditions of peace. 
 As a war measure it would, perhaps, lead to the horrors of a 
 servile revolt, a design not to be imputed to the advocates of 
 the measure, but could have no other effect to weaken the 
 enemy than the course already pursued by the President, of 
 receiving and employing negroes wherever our armies move. 
 As a peace measure, could it be executed, it would break up 
 the fabric of Southern society, change suddenly habits long 
 formed, deprive the negroes, without previous preparation, of 
 the protecting care which, with all its evils, slavery does 
 afford, deluge the South Avith a flood of ignorant, idle, thrift- 
 less pauperism, obliterate a vast amount of property, and in- 
 volve in indiscriminate ruin Union men and rebels, the deluded 
 victims of treason and traitors, the innocent and the guilty. 
 To the negroes such a step might prove a calamity. Sudden 
 emancipation, under any circumstances, is far from desirable 
 for them, but sudden emancipation, as a hostile act, by ene- 
 mies in arms against their masters, thus making the freedom 
 of the negro the badge of his master's subjugation, would con- 
 vert that master into a foe. Neither the two races, nor North 
 and South, could live very harmoniously together after such a 
 proceeding. We do not need it, because we are strong enough 
 to conquer the rebellion Avithout its aid. It would, moreover, 
 be a breach of faith to the Union men in the South. The 
 Government has proclaimed that it makes war only against 
 the rebellion, and has promised to the people protection in all 
 their rights and their former position in the Union.* 
 
 Another party, possessing much influence, defeated but not 
 overcome, anxious to regain lost power, and eagerly watching 
 for that purpose the course of events and the tides of opinion, 
 goes to the other extreme. According to this party, the re- 
 bellion was a mistake on the part of the Southern people, into 
 
 * Tliis was written in May. On the 22cl of the following September the 
 Proclamation of the President was issued, declaring freedom to all slaves in 
 States in rebellion on the 1st of Januar}'. This Proclamation is of a differ- 
 ent character from the measure supposed in the text. See Appendix.
 
 SLAVERY. 285 
 
 whicli they were driven by the unjust invasion of their rights. 
 They were entitled to the territories ; they were entitled to 
 the rigid execution of the fugitive slave law, so revolting in 
 its details and so insulting to Northern sentiment. Foreign 
 conquest, too, of the fertile regions around the Gulf of Mexico, 
 if it increased the area of slavery, would increase also the 
 national po^vor, and is, therefore, a wise policy for the Na- 
 tional Government. The odious character of slavery, and the 
 evils to be entailed on distant generations by spreading the 
 negro race over vast regions that might be secured to a higher 
 civilization, this party wholly disregards. The implied sanc- 
 tion and approbation which would thus be given to slavery 
 and to the principle that men can be property, it also disre- 
 gards. Slaves and cotton, in its view, are alike property, and 
 form a large portion of the wealth of the country, and as such 
 should be protected and fostered by the Government. They 
 form the whole wealth of the South ; and when the Southern 
 people saw them endangered by tlie election of a Republican 
 President, they were justly alarmed and indignant, and if, in 
 making war upon the Government for the purpose of destroy- 
 ing the nation, they Avere guilt}^ of excess, it was folly, impru- 
 dence and error, rather than crime, for which they may well 
 be forgiven by us, their countrymen and brothers. 
 
 Those who reason thus are a portion of the Democratic 
 party, the ancient and trusty allies of the South. When the 
 "war broke out they gave to their old friends the influence of 
 their entire sympathy and of such public opinion as they could 
 create in the North, to favor the cause of the rebellion. They 
 placed also in the difficult path of the Government whatever 
 obstructions they could, short of open physical resistance. 
 They poured forth argument, ridicule and vituperation upon 
 all the men and measures of the administration ; they magni- 
 fied Southern victories and Northern reverses ; they dis- 
 paraged our generals, our army, our successes, and constantly 
 predicted failure and disaster even in the midst of our tri- 
 umphs. They advocated the cause of secession and denounced 
 
 the war as a mere Abolition war, and a wicked attempt to 
 
 I
 
 286 THE TRIAL OF THE CONSTITUTION. 
 
 subjugate a brave people fighting for tlieir liomes and their 
 rights. 
 
 These discordant voices, liowever, were soon lost in the 
 grand symphony of patriotism, which SAvelled from all classes 
 and all parties of the Northern people. The masses of the 
 Democrats were caught by this music, and marched to its in- 
 spiring strains in the armies of the Union. The- uprising of 
 the people, caused by the fall of Sumter, dissipated the hope 
 that to avoid war, concessions and compromises would be offered 
 by the Government to rebels in arms against its authority. It 
 was evident that a Northern party to oppose coercion, either 
 by force or opinion, could not be formed. After an anxious 
 period of suspense, events soon proved that the North, united 
 in purpose and feeling, must be victorious in the end. The 
 rebels could not take Washington, could not invade the North- 
 ern States, could not therefore dictate terms to the conquered 
 Government, and with the aid of the Democratic party, re- 
 construct the Union on its old basis of Southern supremacy. 
 Nevertheless this object has not been abandoned. As the pro- 
 gress of the war encourages hopes of reunion, the terms on 
 which it can be effected demand attention. The Southern 
 States must always be a powerful ally, and slavery an element 
 of strength in political contests. The Democratic party, to 
 whom they belonged before, is determined if possible to secure 
 them again. And how ? By yielding as before to all their 
 demands. The movement has commenced. The leaders have 
 sat in solemn conclave, a platform has been prepared and a 
 cry invented, rather a taking one it must be confessed : " The 
 Union as it was, and the Constitution as it is." 
 
 The popular sentiment having been pronounced so decidedly 
 in favor of Avar for the Union, we are told at length by these 
 tacticians that the Union is indispensable to the prosperity of 
 the nation. This had been said before, but it has been coupled 
 now with a doctrine referred to in the second chapter. If any 
 of the States succeed in establishing their independence, the 
 legal tie which connects the others would be by that act sun- 
 dered, and all be brought back to the condition in Avhich they 
 were before the Constitution was made. Of course then, this
 
 SLAVERY. 287 
 
 indispensable Union will cease to be in their eyes even desira- 
 ble. Reason and thought, and the habit of consultation and 
 combination, so peculiarly the results of American education, 
 would at once lose all influence over the States or the people. 
 The strong would immediately begin to prey on the weak, and 
 the result would be war raging throughout the land, until after 
 many years of confusion and misery, this once happy Republic 
 would be divided, as Europe is, into separate nations, each 
 watching the other Avith jealous eyes, each armed, and each 
 therefore an absolute monarchy. To avoid such a destiny, the 
 one thing necessary is Union. But how can the Union be re- 
 stored ? Not surely by war. It is impossible to conquer the 
 Southern 'peoiile. They are brave and high-spirited. They 
 have a vast territory. They have great resources in their fer- 
 tile-soil and the labor of their slaves. You may defeat their 
 armies, occupy their sea-ports, even overrun the interior spaces 
 of their country, but a people determined on resistance can 
 never be permanently subjugated, and the Southern people will 
 resist to the last extremity rather than submit to the rule of 
 the Black ReiJuhlicans. 
 
 Since war then cannot save us from the disasters of disunion, 
 what can ? Conciliation. But it might be said, what offers 
 of conciliation can the Government make that it has not al- 
 ready made ? Has it not been proclaimed in every possible 
 official form, that this war is waged not against the people, but 
 against the rebellion ? Do not our generals, wherever they 
 go, declare their purpose is not to destroy, but to protect ? Do 
 not they promise safety and security to all rights, and to every 
 man, not in arms against the Government ? Do they not in- 
 vite the people back to the old flag, and to all the blessings 
 they enjoyed under it ? " Ah !" say the Democratic leaders, 
 " that is not enough. The Southern people know their friends. 
 They will not accept conciliation from xibolitionists, but they 
 would accept it from us." " And what terms would you offer ? 
 Surely you would not propose that the Government should so 
 far forget its dignity and authority as to sue for peace, seek 
 negotiations and make concessions to rebels with arms in their 
 hands! What is your plan?" "We will tell you," is the
 
 288 THE TRIAL OF THE CONSTITUTION. 
 
 reply, " when we SAveep the country at the next election. Let 
 the Confederate States hold out till then, and the Democratic 
 party will save the nation and restore 'the Union as it was, 
 and the Constitution as it is,' for we only have the power." 
 It is obvious enough, that the Union here meant is the Union 
 between the South and the Democratic party, and the Consti- 
 tution to be preserved is one that covers all the extravngant 
 claims of the South in favor of slavery, which claims caused 
 the war. 
 
 There is hope that these extreme opinions and schemes will 
 not prevail. The Northern people are intelligent and moral. 
 Nowhere on earth is education so generally diffused, nowhere 
 else is the ability to think and act on public affairs so universal. 
 Their minds are now thoroughly roused, their best emotions 
 excited by the great events of the hour and the great interests 
 at stake. They are willing to forget the divisions of party, 
 even the just resentment caused by rebellion and treason. In 
 the midst of war, the Northern people areas yet full of kind 
 feelings to the South, and ready at any moment to forgive the 
 past. In the noble display of sentiment and mental power 
 they have made and are making, in this their day of trial and 
 danger, they have done more to vindicate the cause of free 
 government than by all their previous prosperity. They have 
 determined to save their country and to keep it, if they can, 
 unmutilated and unbroken for themselves and their posterity 
 forever. They cannot be led by fanaticism to oppress and 
 outrage one portion of it, or by party spirit or party manage- 
 ment, however adroit, to succumb to the arrogant dictation of 
 that portion. They are anxious that slavery be so managed 
 as to do justice to the South, and at the same time satisfy the 
 moral sentiment of the Northern people, and any plan adopted 
 by the Government which may combine both these conditions 
 ■will be sanctioned by the practical good sense of the country. 
 
 Our Government is now placed in a position similar to that 
 occupied by tlie Convention that made the Constitution. The 
 task of the latter was to strengthen and consolidate a Union ; 
 that of the former is to restore one, and how to deal with 
 slavery was and is the Sphinx's riddle, presented to each, to
 
 SLAVERY. 289 
 
 be solved on pain of death. The Convention solved it by 
 giving their sanction both to slavery and tlie slave trade. 
 They disapproved of both, and they accepted both wholly as 
 a necessity. But they did not say so in the Constitution, and 
 that, not their debates, has been, and must be, regarded by 
 posterity as the expression of their opinion. Neither did they 
 understand the nature of the negro. For want, therefore, of 
 candor and of knowledge they failed to read the riddle ai-ight, 
 arid as a consequence, the teeth and claws of the inexorable 
 Spliinx have been rending and lacerating their work ever 
 since, and at length the vengeful monster has torn it to pieces. 
 We now go forward to its rescue. " Read me my riddle, 
 then," the Sphinx cries to us, "and read it aright, or I will 
 destroy you utterly." We must try to obey. It is our fate. 
 Four millions of negroes in their African fashion, with mute 
 eloquence and humble uncouth bendings, are speaking to us, 
 all unconsciously, words of command. " Find out our true 
 position," they say. " We cannot find it out for ourselves. 
 We knew what it was in Africa well enough. We Avere put 
 there by our Creator and he taught us. But you brought us 
 here and placed us in the midst of your incomprehensible 
 civilization and alongside of your people who are to us as 
 gods. We cannot reach up to the one or keep pace with 
 the other. But this much we do know : we are entitled to 
 the eternal and universal justice, which is born of heaven and 
 will live when earth has passed away. You are wise. Place 
 us Avhere we ought to be, or we will conquer you by our 
 degradation, rivet our chains around your necks, and over- 
 whelm you by our dusky multitudes." 
 
 This is the problem offered to us by the war. Let us ap- 
 proach it in the spirit of truth and with the advantages of ex- 
 perience. The subject has three essential elements : the needs 
 of the negro, of the Southern people and of the Northern 
 people. Any plan that does not satisfy all of these must fail. 
 
 It rightfully belongs to us to determine the position of the 
 negro, not to him. Our race is permanently different from 
 his, and permanently superior in all mental, moral and physi- 
 
 19
 
 290 THE TRIAL OF THE COXSTITUTIOX. 
 
 cal qualities. We must therefore govern him, because it is 
 the attribute of superior power to govern. From the earliest 
 antiquity his intellectual force and capacity have never varied, 
 and he has always been governed by the white race wherever 
 he has been its companion. We cannot even consult him 
 about the position he ought to occupy in our social system. 
 It would be absurd to do so, for he could give no intelligible 
 answer. Therefore, he never has been consulted. The Abo- 
 litionists themselves are now debating the question, what shall 
 we do with the negro? Shall we set him free? Shall we 
 keep him in slavery ? Shall we send him back to Africa or 
 to some island in a Southern sea and so get rid of him and 
 slavery together ? No one ever thinks of discussing these 
 questions with the negro, who is the party most deeply inte- 
 rested. It would be ridiculous to submit them to him and to 
 put a ballot-box into his hands that he might decide them. 
 No opinion of his would influence ours in the slightest degree. 
 He has never expressed an opinion because he cannot have 
 any. He is passive because the whole subject is beyond his 
 range of thought. Not at his instance has the slavery ques- 
 tion been mooted and agitated. He has never asked for 
 liberty. It is doubtful whether, when well treated, he even 
 really desires it with the rational desire of one who can ap- 
 preciate its advantages, enjoyments, duties and responsi- 
 bilities. A child likes freedom and is glad when the hour 
 comes for release from school. Ignorant and foolish people 
 like freedom from all restraint and the privilege of doing as 
 they please. But freedom in any manly and proper sense, 
 freedom coupled with toil, care and moral obligation, the 
 great mass of the Southern negroes do not desire, because 
 they cannot comprehend it. Nevertheless, some of them can 
 comprehend it, and the race, though incapable of civilization, 
 in our sense of the word, of advancing with us in industry, 
 knowledge and the arts, is able, under our guidance, to reach 
 the rank of a free working class and enjoy its privileges. 
 This ability cannot be conferred upon the negro by law, 
 though restraints upon it may be removed by law. It must 
 be the result of circumstances and education.
 
 SLAVERY. 291 
 
 If we have thus by natural law the right to govern the 
 negro, the same law imposes on us the duty to govern him for 
 his own good, not exclusively for ours. Four millions of 
 negroes represent a vast sum of human happiness or misery 
 which we have the power to influence. Wc are bound to 
 exercise that power with justice and humanity, under penal- 
 ties. There is no such thing as power disunited from duty. 
 If I have control of another. I am responsible for his well 
 being. This is the universal law of justice, and if we reject 
 that stone from our edifice it cannot stand.* 
 
 The question then is, what is the best and happiest position 
 for the negro, living, as he does, alongside of the white race 
 in the Southern States, constituting, as he does in some of 
 them, one-half or more of the population ? As he is, by the 
 laws of nature, inferior to the Saxon, no human laws can 
 make him equal. The princij)les of democracy do not apply 
 to the negro. He is not capable of thinking at all on the po- 
 litical questions or the great interests of a civilized commu- 
 nity, and therefore he is. incapable of acting. Evidently the 
 ballot-box is not an instrument that he can use with benefit to 
 himself and others. It is useless, however, to discuss the 
 question of granting political power to the negro in the South, 
 as no party of any influence in the country advocates so wild 
 a scheme. 
 
 If he is not fitted for the highest place in the social scale, is 
 the lowest, — that of a chattel slave, — one in which his faculties 
 will find their most healthy development, and his capacity for 
 enjoyment be most fully satisfied ? Is he not a human being? 
 Has he not spiritual life in him ? Has he not affections which 
 demand their objects, a mind capable of improvement, moral 
 sentiment that may be cultivated, purified, and elevated? 
 Can he not, in his humble way, be made to appreciate Divine 
 truth, — be taught that even he is an object of God's infinite 
 care, justice, and love ; and that for him, too, however lowly 
 
 * On this point I refer with pleasure to an eloquent and philosophical 
 little book, entitled " The Rejected Stone, or Insurrection against a Resur- 
 rection."
 
 292 THE TRIAL OF THE CONSTITUTION. 
 
 here, dawn the hopes of a life hereafter ? If this be true, then 
 he is a man and not a thing, — a j^iece of our common human- 
 ity and not a piece of merchandise ; and to class him among 
 things and to treat him as merchandise is to place him in a 
 false position, where, however well he may be fed and clothed, 
 the needs of his moral and intellectual nature cannot be satis- 
 fied. As man the negro has rights, as property he has none, — 
 no right to the proceeds of his toil, to wife or child, to choice 
 of occupation or abode, — no right of self-defence, no right to 
 himself. As property he has no claim on the justice or huma- 
 nity of his master, and exists only as an instrument of gain. 
 The principle that a slave is property binds fetters on his soul, 
 shuts out the heavenly lights, and bars against him the path 
 of moral and mental improvement. 
 
 If the negro's nature be too low for equality with the white 
 race, and for the enjoyment of political liberty or power over 
 the State, it is too high, seeing that he is human, for the con- 
 dition of a cluittel. Wliat, then, is his proper position in the 
 social scale ? His bodily strength and mental weakness fit 
 him to be a laborer in those pursuits which require bodily 
 rather than mental force. He cannot think, but he can work. 
 He cannot become a skilful artisan or build ships and cities, or 
 make or use machinery, or conduct commerce, or write books, 
 or make laws, but he can dig and plough, — can be a hewer 
 of wood and a drawer of water. He is thriftless, improvident 
 and indolent by nature, because frugality, forethought and in- 
 dustry were not needed in Africa, where the soil and climate 
 supplied his wants and provided for his future. Therefore 
 here he requires guidance and control, — some rightful supe- 
 rior to govern him for his own good. That natural govern- 
 ment he finds in the white man, and his true position is that 
 of a peasant, — of a "^^r^rson bound to service or labor," for 
 such terms and on such conditions as the law may prescribe. 
 
 Such laws ought to recognize the real qualities of the negro, 
 one of which is his capacity for improvement, and to regulate 
 the terms and conditions of his servitude according to his pro- 
 gress, thus opening tlic way to his enjoyment of entire free- 
 dom. Tliey ought also to recognize the grades of race, and
 
 SLAVERY, 293 
 
 the fact that a mixture of hlood creates differences of intellect 
 and character, of sensibility and aspiration, which justly de- 
 mand a wider scope for development and a different social rank 
 from those accorded to the negro of the whole blood. It is 
 .monstrous that at this moment, in the South, many thousands 
 of mnlattoes and quadroons arc held as slaves and treated as 
 property. The laws of race arc thus violated, and the trans- 
 gression, as in other cases, has brought its appropriate pun- 
 ishment. 
 
 Now, what is the place assigned to the negro by the Con- 
 stitution? It does not call him a citizen, nor rank him among 
 the people. The words "we the people," with Avhich the in- 
 strument begins, do not apply to him. He did not vote for 
 the Convention, he was not consulted in any way about the 
 Constitution, nor did he help to ratify it. Neither does the 
 Constitution call him a chattel, but uses words which exclude 
 the idea that he can be property, and which, if not expressly 
 meant to exclude that idea, were intended to open his way to 
 a higher position. It does not even call him a slave, — -the 
 meaning of which term is, a person subjected for life to the 
 will of another. It describes the negro as a " person held to 
 service or labor." How held? By the law, of course, and for 
 a longer or shorter time, and with more or less power in the 
 hands of the " party to whom such service or labor may be 
 due," as the law, in its wisdom, may direct. The Constitu- 
 tion thus, while it does not expressly condemn or prohibit even 
 chattel slavery, — for how could it, and in the same breath per- 
 mit the continuance of the slave trade, — vet recognizes and 
 anticipates a rank for the negro race which suits its nature, 
 and may, for that reason, be regarded as its best possible or 
 ideal state. It permits slavery, but throws wide open the 
 door to its amelioration and gradual extinction in the States 
 where it existed, according to the will, not of the black, but of 
 the Avhite race in those States. 
 
 This brings us to the consideration of the second element 
 mentioned above, as essential to any plan for the settlement 
 of the difficult subject of slavery at the present time. 
 
 The masses of the negro race are in the South. They are
 
 294 TnE TRIAL OF THE CONSTITUTION. 
 
 four millions strong, and rapidly increasing. In the Cotton 
 States they almost equal, in many regions they greatly out- 
 number the -whites. They may be called property, but they 
 prove their claim to humanity by the influence they exert on 
 the white race. They are a lower type of man than the Saxon, 
 therefore they cannot govern him. Tliey cannot approach his 
 level of civilization or have mental communion with him, but 
 must remain forever, under the best circumstances, essentially 
 alien, because permanently inferior. They form indeed a vast 
 body of African life, introduced into the midst of our high and 
 progressive Anglo-American life, its inseparable companion 
 forever. Look at it, for it is a portentous fact. Africa, trans- 
 planted to our Southern soil, striking root into it with tropical 
 vigor, sending forth in all directions, like the banyan, branches, 
 which, as they droop to the ground themselves take root, 
 spreading thus the dark canopy of the tree, till it threatens 
 to usurp and overshadow the land. This is the condition of 
 the South. The negro race there is dangerous to the Saxon, 
 because of its numbers, its inherent degradation, its incapacity 
 for civilization. It threatens him with servile war, with the 
 pestilence of an ever increasing mass of ignorance, vice, pau- 
 perism, and barbarism. It must be governed by somebody, 
 for it cannot govern the Saxon or itself. To save the South 
 from becoming African, Africa in the South must be regulated 
 and restrained by some power external to itself. Now, in 
 whose hands ought that power to be placed ? In those of the 
 Northern people, who arc safe from the danger and ignorant 
 of its nature, and therefore ignorant of the means to avert it, 
 and without the motive of self-preservation to find a remedy 
 or to use one ? Is it not too plain for argument that power to 
 govern the negro of right belongs to the Southern people, Avho 
 must face the perils of his presence and growth, Avho must bear 
 the burden of his weakness, and who understand his character? 
 Out of these qualities of the negro has grown up the Avhole 
 structure of Southern society, and the manners of the people. 
 The negro is a laborer, and thus his relation to the white race 
 is a controlling element in Southern industry. He is a do- 
 mestic servant ; his position therefore influences the most pri-
 
 SLAVERY. 295 
 
 vatc and sacred concerns of the family and fireside. The labor 
 of the negro is the source and support of Southern prosperity. 
 He brings out of the soil cotton, tobacco, corn, rice, sugar, 
 and these constitute the wealth of the Southern people. The 
 position held therefore by the negro race is connected in the 
 relation of cause and effect with the safety, the social arrange- 
 ments, the domestic habits and the prosperity of the South, 
 with all its interests and with all its hopes. "Who then should 
 govern the negro, the North or the South ? This question has 
 been decided wisely and well by the Constitution. 
 
 But slavery is not sectional, it is national ; national in its 
 benefits and evils, in the political power that it possesses, in 
 the political power that it invokes for its protection. It may 
 elect a President ; its vote may control the action of Congress ; 
 its productions have enriched the nation, and its treason has, 
 for a time, at least, destroyed the Union. Northern men have 
 therefore a deep interest in slavery. They have also much 
 power over its destiny. Any plan, therefore, to arrange the 
 slavery question, must satisfy the requirements of the North. 
 
 The North requires the Union. A separate nation esta- 
 blished in the South, by its conflicting interests and its foreign 
 alliances, would endanger the safety and repose of the North- 
 ern people. The North requires the Avhole country in its 
 length and breadth. It will not yield, if it can keep, the Mis- 
 sissippi River and its outlet, the Gulf Coast and the cotton 
 crop. It needs all these as the basis and support of its great 
 Northwestern interior trade, its foreign commerce and its ma- 
 nufactures. The North requires the Southern people, its 
 brethren of the Saxon race, for contented fellow-countrymen. 
 It needs their prosperity and advancement in all good and 
 worthy things, because it needs their poAver, their wealth, their 
 intelligence and valor to help build up in this Western World, 
 a great empire of civilization, to surpass the marvels of the 
 East. But the North has other than these material wants. It 
 has reached a point of moral culture that must not be revolted 
 or contradicted by the Government. The Northern people do 
 not approve of slavery, and no power on earth can make them 
 approve it. They laugh to scorn, laws and Supreme Court de-
 
 296 THE TRIAL OF THE CONSTITUTION. 
 
 crees '^vhich declare that men can be property. Even the 
 human relation of master and slave, however justified by cir- 
 cumstances, they know to be fraught with danger to all that is 
 good and noble and beautiful in character and manners. 
 
 This relation, therefore, is an evil thing, and is one of the 
 evils caused by the presence of the negro race in large num- 
 bers at the South. Against the spread of that race over the 
 territories under the jurisdiction of this Government, the 
 North has set its face like flint. The Government is the trus- 
 tee for the people of those magnificent tracts, the seat of future 
 civilization ; and not by the aid of Northern votes shall they 
 and their posterity be cursed by Africa and slavery. Both 
 of these are the fate of the Southern States. The Govern- 
 ment could not, if it had the legal authority and the desire, 
 take the negro out of those States. The black race is esta- 
 blished there, in some of them, forever ; in others for an uncer- 
 tain period. The people of those States have, by moral right, 
 as they have by law, the power to govern the negro by their 
 own lights and according to their own views of safety and inte- 
 rest. With the exercise of this power the Northern people 
 have no wish to interfere, but they insist that their settled 
 convictions on the subject shall be now expressed, and their 
 moral sentiment satisfied by the Government. 
 
 This is an historical period, decisive of the fate of the nation. 
 We are in the midst of a great war. Fundamental principles 
 are examined and discussed. We are perhaps on the eve of 
 great changes. Instructed by the past, let us try to provide 
 for the future. Let us settle this vexed slavery question, 
 and that we may place it on firm foundations, let Congress do 
 what the Constitutional Convention failed to do, — tell the truth. 
 The (lifficidty has been to find out some comprehensive plan 
 that may contain that justice which at last satisfies all men. 
 To this object discussion and controversy have been long 
 tending, each party pressing its own interests and views. In 
 the Federal and State Legislatures, in lectures and speeches of 
 every kind, in the current literature and in all journalism, the 
 rights of the North, the rights of the South, and the rights of 
 the negro have each found zealous, and in many cases, most
 
 SLAVERY. 297 
 
 able advocates. But various obstacles have always started 
 up in any path that promised to lead out of the wilderness, — 
 sectional interests, State rights, legal questions. Yet out of 
 this Avilderness we must go or be lost. 
 
 At length the pathfinder, as we thought, had appeared in 
 Mr. Lincoln. The road to which he points seems so obvious 
 and easy, that the wonder is no one ever noticed it before. 
 The discovery is announced by his Message of March ()th, in 
 a few simple sentences according to his custom. " The United 
 States ought to co-operate with any State, which may adopt 
 gradual abolishment of slavery, giving to such State pecuniary 
 aid, to be used by such State, in its discretion, to compensate 
 for inconveniencies, public or private, produced by such a 
 change of system." These words are full of meaning. If they 
 do not cover the whole ground, they go as far as the Constitu- 
 tion permits. 
 
 To the negro they offer hope, the assurance of sympathy, 
 and the promise of aid in his favor, so far as the Government 
 has power to interfere. To the Southern people they declare 
 respect for State rights, and concede to them full power over 
 the negro race. At the same time the Message says to the 
 South in all candor : " Slavery is not itself a good thing ; at 
 best it is a necessary evil. When you are convinced that it is 
 so, and wish to get rid of it, ask the Government for help and 
 you shall have help. You see now how foolish you have been. 
 We always told you we did not intend to attack slavery, but 
 to . defend it. You would not believe us, but believed the 
 Abolitionists. This Government has been and is the only de- 
 fence of slavery. Even during the war it has protected it, 
 and it offers now to do so notwithstanding the war." 
 
 The Message offers also satisfaction to the Northern senti- 
 ment against slavery. It pledges both the legal action and 
 the moral influence of the GovernTneat, not only against its 
 extension, but for its extinction, by a safe and gradual process 
 that shall do justice to vested rights, and avoid the mischiefs 
 of sudden change. The Message, therefore, puts the nation 
 in its true position before the tribunal of the world's opinion. 
 It tells the truth, which the Constitution failed to do, and pro-
 
 298 THE TRIAL OF THE COXSTITUTION. 
 
 claims to the age, that this Government tolerates slavery, but 
 does not approve it ; prohibits where it can, and maintains it 
 only Avhere it must ; that slavery is not an American but an 
 African institution, and is here only because Africa is here. 
 
 In accordance with the suggestion made by Mr. Lincoln, 
 Congress has already passed a bill offering pecuniary aid to 
 the States that may desire to get rid of slavery. They have 
 also abolished slavery, ■with compensation to masters, in the 
 District of Columbia, and an Act has just passed the House 
 of Representatives (May 13th), prohibiting slavery forever in 
 the Territories. These measures are all within the power of 
 the Government. To go further Avould transcend the Consti- 
 tution. For the existence and condition of slavery in the 
 country, therefore, this Government is no longer responsible. 
 These measures are wise and just because they express the en- 
 lightened convictions of the Northei-n people, who as the great 
 majority of the nation, have a right to demand that their 
 sentiments shall be represented by the Government. They 
 also accord with the spirit of the age, which cannot be disre- 
 garded without loss of national reputation and position. 
 
 All these acts, however, though so just and moderate, were 
 opposed by most of the members from the border Slave States, 
 and by Northern Democrats. Does this opposition proceed 
 from sectional pride, or a desire to maintain slavery as an 
 element of party power, or from an honest conviction that sla- 
 very is a blessing, and ought to be cherished and extended? 
 Whatever the cause, the fact of opposition, especially of North- 
 ern opposition, to such measures is ominous of future difficulty. 
 It creates a doubt whether, when our fathers endeavored to 
 unite slavery and liberty under the same Constitution, they 
 did not attempt what is in the nature of things impossible. 
 Are the Abolitionists right then when they declare that the 
 Northern people have no •choice on this subject, the eternal 
 truth having said to them : "Either destroy slavery now, or 
 permit slavery to destroy the Union. You can have no fellow- 
 ship with an evil and wrong thing. Whether slavery be in 
 the Union or out of it, you can never live in peace with it as 
 your close neighbor. Between slavery and liberty, between
 
 SLAVERY. 299 
 
 negro barbarism and Saxon civilization, there is and must be 
 eternal war, an ' irrepressible conflict ' that Avill never cease 
 but with the absolute triumph of one or the other. Better 
 settle this conflict now if you can." Perhaps after all this is 
 what the Sphinx means. Truly may it be said that Africa has 
 invaded and conquered our country, and though we may call 
 the negro a slave, he is the master of our destiny. 
 
 The President's proposal went as far as the Constitution 
 permits. It was addressed to the Border States, from which 
 slavery must be banished, sooner or later, by the operation of 
 natural causes. It was intended to reassure them as to the 
 intentions of the Government, and thus to confirm their 
 wavering loyalty, secure their adhesion to the Union, and 
 deprive the leaders of the rebellion of all hope of gaining 
 those States to their cause. As a practical measure it can 
 have ho efi'ect, in the manner proposed, upon slavery in the 
 Cotton States, which are the seat of its empire ; not only 
 because they would reject it with scorn, but because compen- 
 sation is out of the question, so large is the value of the 
 negroes. 
 
 But the moral influence of this Message is of great import- 
 ance. It does what the framers of the Constitution failed to 
 do, — it tells the truth. It does wdiat no administration has 
 dared to do since the Constitution was made. It proclaims 
 that chattel slavery is an evil thing Avhich ought to be got rid 
 of. The act of Congress, which followed the message, pro- 
 claims that, for the sake of getting rid of it, the Government 
 and the American people are willing to pay large sums of 
 money, as England did, to accomplish the same object. It 
 says, " We would abolish slavery if we could, and we would 
 do it with just consideration for the interests connected with 
 it. The only reasons why we do not abolish it are, first, 
 those interests are too vast for the national treasury to pur- 
 chase; and, secondly, we have not the constitutional power. 
 All that we could do, we have done."
 
 300 THE TKIAL OF THE CONSTITUTION. 
 
 This is a great step on-ward. Compare it -with the humble 
 beri:inniiif!;s of the Abolition enthusiasts, with the Missouri 
 Compromise, with the last atrocious fugitive slave law, with 
 the Leconipton Constitution, with the Dred Scott decision, 
 and the progress of opinion is obvious. Moreover, it is an 
 irrevocable step : no backward one can be taken. The tide 
 of opinion which has floated the nation to this high-water 
 mark, knows no ebb. It flows from perennial fountains seated 
 deep in the heart of humanity, in the moral sentiment of the 
 world; fountains unsealed at Calvary and on the Mount. 
 The message may fail as to any immediate practical result ; 
 the act of Congress may never be carried into eff"ect, and 
 probably will not ; neverthless they ai"e records which an- 
 nounce the fact, that the Northern people of this country, 
 after seventy years' experience, have condemned slavery as it 
 exists in the South, even though they permit it to exist. 
 Had the framers of the Constitution done this as emphatically, 
 what mischief they would have prevented. 
 
 It may be doubted, however, whether the Message reaches 
 the root of the evil, for it cannot be executed throughout the 
 South. Our fathers did not venture to make the Constitution 
 express their disapprobation of slavery. They did not, like 
 Mr. Lincoln, declare that slavery is an evil thing. They did 
 not say, we permit it for a time, only because we are forced 
 to do so by inexorable necessity, and because we hope it will 
 ere long disappear. They refused, indeed, to use any words 
 in the Constitution which implied that there could be property 
 in men. Nevertheless, they permitted the slave trade, based 
 upon the idea of such property; and they provided for the 
 return of fugitive slaves, treated at the time as property by 
 the laws and practice of the South. Whatever the language 
 they employed, therefore, impliedly they did recognize men 
 as property. The most that can be said of this part of tlieir 
 work is, that they could not bring themselves to say, in plain 
 terms, what they were obliged to do; that tliey refused to 
 blot the Constitution with the open avowal of what they felt 
 to be false ; that they tliouglit they cleared themselves of re- 
 sponsibility by leaving the matter exclusively to the States;
 
 SLAVERY. 301 
 
 and that they used phrases which are applicable to a different 
 position of the negro, if the States should clioose to give him 
 a different position. He might be " a person held to service 
 or labor," and yet not property. The States interested have 
 not chosen to give him a different position. It is impossible 
 to say that they have not, for this determination, the sanction 
 of the Constitution, 
 
 But slavery has been found inconsistent with the Union. 
 It is not enough that it suits the South ; Northern opinion 
 must be satisfied also. Let us inquire why slavery is incon- 
 sistent with the Union. Perhaps thus some basis may be 
 discovered on which a Union may be founded. 
 
 It is not true that there can be property in men. The 
 ■ eternal laws of nature which govern both men and property, 
 contradict such a dogma ; and no Constitution, by asserting 
 it, however expressly, can make it true, any more than it can 
 make it true that two and two are fifty, or that the three 
 angles of a triangle are a circle. Let any one attempt to 
 keep books by the first of these rules, or to build houses by 
 the second, and he will fail. In like manner a Constitution 
 that attempts " to form a more perfect union, establish 
 justice, insure domestic tranquillity, provide for the common 
 defence, promote the general welfare, and secure the blessings 
 of liberty," by means of a government founded on a false- 
 hood, will fail ; more especially if that falsehood be moral, — 
 be the denial of principles to which obedience is duty. 
 
 The moral laws punish transgressors. An untruth, a lie, 
 will work after its kind in spite of wise conventions. A lie 
 poisons all human relations. It inflames and festers whatever 
 surrounds it, like a thorn ; and the only remedy is to pull it 
 out. Put an untruth into a constitution, more especially a 
 moral untruth, and so long a* it remains there it will bear its 
 natural fruits, which are not peace and order, but confusion 
 and strife. 
 
 The laws of God declare that man is not property; that 
 things, not men, are property. The Constitution says that 
 men may be made property by the laws of a State. This 
 untruth has been the cause of all our troubles. It has been
 
 302 THE TRIAL OF THE CONSTITUTION. 
 
 inflaming and festering our body politic from the beginning, 
 throwing it from time to time into hot fevers and convulsive 
 paroxysms ; at length it has burst into a soi'e, running blood. 
 
 Let us look for a moment at the natural consequences of 
 this doctrine. Because it was false it was sure to be attacked. 
 That is the fate of all falsehood in an enlightened age, and in 
 a country where freedom of speech and of the press prevail, 
 or even where they do not, 
 
 " For stony limits cannot keep love out," — 
 
 love of beauty, or love of truth. Neither can laws, or guards, 
 or police, be they never so perfect, keep thought out, or prevent 
 its free range. It has ways of its own to accomplish its pur- 
 poses. It can drive a coach-and-six through a statute, glide- 
 through the ranks of armies, and stand an invisible but com- 
 manding presence by the side of an oppressor's throne. It 
 can visit the plantation hut of the negro. The birds of the 
 air will carry it wherever a truth is made captive, wherever a 
 falsehood lives; and sooner or later, the truth will be liberated 
 and the falsehood die, — though the deliverer brings often not 
 peace but a sword. 
 
 The idea that men can be property was, therefore, sure to 
 be attacked. It was as sure to be defended, wherever men 
 were treated as property, and because they were so treated. 
 Property will always be defended by its owners ; and so will 
 power. 
 
 " Plate sin with gold, 
 And the strong lance of justice hurtless breaks : 
 Arm it in rags, a pigmy's straw doth pierce it." 
 
 So it has always been. Truth has won her great victories, 
 not by the sword of the spirit only. Connect wealth and 
 power with a falsehood and they will fight for it. Make the 
 slaves valueless and the Southern people will readily acknow- 
 ledge that they are not property. Make them worth two 
 thousand millions of dollars, and an army with banners will 
 arise to declare, by defiant volleys, that property they are and 
 shall be. So it has happened with us. The owners of this 
 property scented danger from afar and prepared for it. So 
 long as they could control the Government they were willing
 
 SLAVERY. 303 
 
 to live under it and use it. As soon as they ceased to control 
 it, they answered the ballot-box by bayonets. 
 
 The falsehood that men can be property, therefore, after 
 giving many warnings of its dangerous nature, has at length 
 caused this war. It Avill cause war so long as it remains in 
 the practice of the South, because it will always be assailed by 
 enlightened opinion. Nothing can prevent this but the forci- 
 ble suppression of all organs of that opinion, meetings of the 
 people, free speech, a free press and the ballot-box. This has 
 long been done in the South so far as slavery is concerned. 
 Slavery and freedom are eternal foes and cannot live together. 
 But it cannot be done in the North. Is it not true, then, 
 that a Union between N^orth and South, on the basis that men 
 are property, is impossible ? 
 
 The Constitution does not say that men are property, but 
 it does not say they are not. It leaves that question to be 
 decided by the local authority of the States. It is one of 
 their reserved powers. AVhatever they decide, the central 
 Government stands ready to execute, so far as its action may 
 be necessary. As the Northern States are represented in the 
 central Government, they are thus required to be not merely 
 passive spectators of Avhat the South may do, but actively to 
 participate in what they do. 
 
 Of this the clause in the Constitution relating to fugitive 
 slaves is an example. Why was that clause introduced ? Is 
 it not because it is false that men are property, and therefore 
 some constitutional provision was necessary to protect it ? 
 The ordinary legal remedies are sufficient for every other sort 
 of property. The Constitution says nothing about horses and 
 cattle escaping from the South. But because by the laws of 
 nature men are not property, the organic laAV and the central 
 power of the nation were thought necessary to enforce the 
 dogma that they are. And Avhy have the laws passed to carry 
 out this clause of the Constitution failed of execution, been 
 obeyed with reluctance, been obstructed, in some cases re- 
 sisted ? Is it not because men prefer the laws of nature to 
 the law" of the Constitution ? Because they are revolted at 
 being required to lie, to say, or to act as if they admitted that
 
 304 THE TRIAL OF THE CONSTITUTION. 
 
 men are property, when they feel that it is false ? It is im- 
 possible to execute such a law without dissatisfaction and re- 
 sistance in any moral or enlightened community. That it has 
 been partially executed in the North, that it has not been 
 universally rejected and spurned, is proof of the love of the 
 people for the Union. They have done what the framers of 
 the Constitution did. For the sake of the Union they have 
 been willing to acquiesce in a lie. They have endeavored, 
 also, to shift the responsibility on the General Government, 
 as the Convention did on the States. " Thou canst not say I 
 did it. The Government does it, and by its OAvn officers." 
 Had the Southern States by their laws and their practice 
 made slavery the relation of a man to a man, not of a man to 
 a thing ; had they rendered the mercenary element subordi- 
 nate to the human ; had they given to the slave rights which 
 opened to him the path to freedom, in cases where he is fitted 
 for freedom, there would have been no opposition to the fugi- 
 tive slave law. To restore a servant to his master is one thing. 
 To restore a man, as a chattel, to his owner, is a very different 
 thing. 
 
 It seems, therefore, that when the -Constitution gave to the 
 Southern States the exclusive right to govern the negro, they 
 attempted what was impossible, unless those States choose to 
 govern him as a man and not as a thing, by Divine law instead 
 of slave-traders' laAV. If they will do that, Union and the 
 Constitution would become possible. Because they have not 
 done it, the Union has been broken and the Constitution can- 
 not be executed. 
 
 Why is it that this humble, despised race has such fatal 
 power, not over the South only, where it dwells, but over the 
 whole nation, power to involve us in the calamities of civil war, 
 to impose on us and on posterity the heavy burden of taxa- 
 tion and debt ; power, perhaps, to break our proud empire 
 into fi-agments ? Is it not because the eternal truth is its 
 champion ? Is it not because, being humble, we have dared 
 to despise it, though created by the same God that created 
 us? The interests, the rights, the well-being of the negro 
 have been left out of our selfish contests as unworthy our re-
 
 SLAVERY, 305 
 
 gard. We have looked calmly on and seen him used exclu- 
 sively as an instrument of gain, bred for sale and driven like 
 sheep and cattle to the market. It is unconstitutional to 
 interfere, we said, and cotton is a good thing. But we have 
 been forced to interfere or become slaves ourselves. The 
 negro has thus obliged us to care for him in order to save 
 ourselves. "We Avill make your country not worth living in," 
 he says to us, "unless you make it worth our living in. We 
 have neither wealth nor power, but we create wealth and 
 power that will be your enemies until you do us justice. We 
 cannot vote or fight, but we can make men of your own race 
 vote or fight to your destruction, unless you grant us our 
 rights. Give us our proper place in the social system of which 
 ■we form a part, or Avith your own people who live with us in 
 the South, 3^ou shall have perpetual Avar or become their base 
 instruments for our degradation." 
 
 What is that proper place ? The Southern people must find 
 it out. It is not that of a chattel, because a negro is a man. 
 Some position as a man is his due. He cannot be equal, he 
 must always be inferior to the Saxon. Nature has created 
 that difference. He must be a servant. Then make him a 
 servant. His services are valuable. His master has a pro- 
 pert}^ in them, but not in him. Then say so, and found your 
 system on that principle. Give him the rights of a servant ; 
 do not deprive him of all rights as a man. Treat a man ac- 
 cording to his just relations, either as a superior, an equal or 
 an inferior, and harmony is the result. Violate those rela- 
 tions and the eternal law vindicates itself by the disorder and 
 strife that ensue. 
 
 Take from slavery the element of property, — even svdDordi- 
 nate that element to its true rank, and slavery Avill be dis- 
 armed of its terrible power over the country. The negro must 
 still be governed by the white race, and, as he becomes con- 
 centrated in the extreme South, must continue to subject its 
 people to the injurious influences of an inferior race ; but Avhen 
 he ceased to be property, he would no longer play a part in 
 the politics of the nation. Obey the truth. Give him the po- 
 sition for which he is fitted by nature, and he would be no 
 
 20
 
 306 THE TRIAL OF THE CONSTITUTION. 
 
 longer dangerous. There would have been no Abolition party 
 in the North, had not the negro been made property by 
 Southern laws. The Southern people would not have made 
 war about him, had ho not been property. 
 
 But what can we do ? The President's scheme of condi- 
 tional, compensated, gradual, contingent emancipation, cannot 
 be executed. Even should the South accept it, the property 
 element rises up and forbids its execution. Cotton has swelled 
 the property in man, permitted by the Constitution, into such 
 gigantic size, that the country, rich as it is, is not rich enough 
 to buy it. Shall Ave, for the sake of the Union, abolish sla- 
 very by the exertion of the supreme, imperial power of the 
 Government, which, as argued in the first tAvo chapters of this 
 volume, is paramount to the Constitution ? This plan Avould 
 also be impossible, for two reasons. First, because, should 
 tho result of the war be the restoration of the Southern States 
 to the Union, they would never consent to it, and could defeat 
 it by their OAvn and Northern votes. Secondly, because eman- 
 cipation, without compensation to the master, would be unjust. 
 We cannot remedy one wrong by committing another ; we can- 
 not permit property to be acquired under the laAV, and then 
 take it away by law. 
 
 Shall we, then, should victory give us the poAver, restore 
 the "Union as it Avas?" Do the Northern people really de- 
 sire to see it restored, — the old "tar and feather Union," 
 under Avhich no Northern man could visit the South, Avithout 
 risk of insult and outrage, unless he Avorshipped slavery ; 
 under Avhich the Northern people were converted into a police 
 to catch runaAvay negroes ; under Avhich the threat of separa- 
 tion and civil Avar Avas constantly brandished over Northern 
 elections ; a Union Avhich was so Aveak that it could be broken 
 by 350,000 slave-owners ; a Union Avith a section that Avas ex- 
 clusively sectional and aggressive in all its feelings and aims ; 
 a Union Avith receding civilization and advancing barbarism ; 
 a Union based upon a falsehood ; a Union Avith an element in 
 it of perpetual agitation, strife and war ; in short, a Union 
 Avith chattel slavery, — do Ave Avish to restore such a Union ? 
 Fortunately for us, it cannot be restored. It had long ceased
 
 SLAVERY. 807 
 
 to be a Union of affection and sympathy. This truth has at 
 length become manifest in f:ict. " The Union as it was" has 
 gone forever. Separation, with all its dangers, is to be pre- 
 ferred to such a Union, with all the wealth and power that it 
 brought. "Better is a dinner of herbs where love is, tlian a 
 stalled ox and hatred therewith." "Better is a handful with 
 quietness than both hands full with travail and vexation of 
 spirit." 
 
 As already stated, the essential conditions of any plan by 
 which slavery can be made consistent with the existence of 
 the Union are threefold. First, it must do justice to the 
 negro, and accord to him his rightful position as a man. Se- 
 condly, it must respect the rights of the Southern people, 
 which require that' the negro race shall be governed by them, 
 and not by the Northern people. Thirdly, it must respect the 
 interests, the moral sentiment, the conscience and opinion of 
 the Northern people, who have a right to be heard on the sub- 
 ject, because they participate in the government of the negro 
 race by means of the central power, and are therefore respon- 
 sible for his good government. 
 
 All these conditions have been violated. The South, by 
 disregarding the rights of the negro, by refusing to regard 
 him as anything better or higher than property, has outraged 
 the sentiment of the Northern people. The result of this was 
 the rise and growth of the Abolition party, who undertook to 
 interfere with the exclusive control of the negro by the South ; 
 and resistance to the designs of this party has caused the pre- 
 sent war, the object of which is the destruction of the Union, 
 and has, indeed, at least for the time, caused its destruction. 
 
 This result was sooner or later inevitable. A falsehood, 
 however bolstered up and hedged round by law, will always, 
 among a civilized and free people, be attacked by the minis- 
 ters of truth. A falsehood that sustains wealth will always be 
 defended by the owners of that wealth. Thence war. For 
 these reasons the old Union failed. For many years it had 
 ceased to be a real Union, but had become a repressed conflict 
 between truth and falsehood, right and wrong. At length the 
 conflict, as was its nature, became irrepressible, and has broken
 
 308 THE TRIAL OF THE CONSTITUTION. 
 
 the Union, Avliicli can never be restored. It was not worth 
 keeping, and is not worth restoring. 
 
 Nevertheless, a Union we must liave, if possible ; if not the 
 Union as it was, the Union as it ought to bo, — a Union of all 
 the States under the old Constitution and the old flag. We 
 can never have one, unless Ave get rid of the falsehood which 
 destroyed the former. 
 
 As already shown, we cannot do this by the President's 
 plan of emancipation by the States, with compensation to the 
 owners, furnished by the central Government ; we cannot do 
 it by an act of emancipation by the central Government ; we 
 cannot do it by emancipation as a war measure, unless, indeed, 
 a very large portion of the slaves could be thus set free, and 
 such a spirit of insubordination sjjread among the negroes as 
 to render slavery thenceforward impossible. 
 
 But does not the history of emancipation in the Northern 
 States suggest a remedy ? The Legislatures of Pennsylvania 
 and New York, — the former in 1780, the latter in 1799, — 
 passed acts declaring, that every child born of a slave, after a 
 certain date, should be free. By these laws, all existing rights 
 to property in slaves were respected. The process was gra- 
 dual. No shock was sjiven to established social relations and 
 habits. Time Avas afforded to prepare the negroes, as well as 
 their masters, for the change, and the evils that must attend 
 sudden emancipation were thus prevented. 
 
 AVould not this plan fulfil the conditions above mentioned, 
 as essential to the peaceful and permanent settlement of the 
 question ? 
 
 It would do justice to the negro. It would convert him 
 from an article of merchandise into a man. It would take 
 out of our law the untruth that men are the subjects of pro- 
 perty. Even those who remained slaves would be benefited, 
 whilst they would avoid the risks of being suddenly placed in 
 a j)osition for wliich they are unfitted by previous habit. Their 
 cliildren would be free. They would gain self-respect by the 
 elevation of their race, and would gain, also, respect from 
 others. Under these circumstances, to the larger portion of 
 them, their servitude would be a protection and a blessing.
 
 SLAVERY. 309 
 
 The rights of the Southern people would be respected, so 
 far as those rights are consistent with the safety and tran- 
 quillity of the nation. Their property in slaves would be un- 
 touched. Their right to govern the negro, as a man of an 
 inferior race, would be untouched. The law would say to the 
 South, give him the place of an inferior. He is entitled only 
 to that, but you must not make him property, for by the laws 
 of nature he is not property. It would then be for the South- 
 ern States to enact such laws as their own safety and interest 
 required, and ample time would be allowed for deliberation. 
 Their social system would be changed, but it would be slowly 
 changed. They would be benefited. It does not follow that 
 because the negro is not property that he must not work, that 
 he must not be compelled to work. It does not follow that he 
 is, on ceasing to be merchandise, to become entitled to all the 
 rights of a freeman or permitted to become a lazy lazzaroni, a 
 mass of ignorance, pauperism and crime. It does not follow 
 that he should not be a servile class, provided the law secures 
 to him the rights of a man. It would be for the Southern 
 States to arrange that by law. Emancipation has succeeded 
 in the West Indies and in British Guiana. That fact is now 
 be^'Ond dispute. The negroes are contented and industrious. 
 These islands are more prosperous than ever. They are 
 demanding more labor, — free labor of coolies or negroes. 
 They would Avelcome an emigration of the latter from the 
 South. Their climate does not permit the white man to work, 
 but they have vast tracts of land, producing the most costly 
 articles of the world's commerce. They are now begging for 
 the free, voluntary labor of the dark races to develop the re- 
 sources of their country. Give us coolies and negroes, they 
 say, working for wages, well paid and well treated, and we will 
 grow boundless cotton, coffee, sugar, and tobacco. They had 
 slavery once, but were forced to give it up. They are now 
 satisfied Avith free labor and would not return to slavery. 
 Why should not the same thing happen in our Southern 
 States ? 
 
 They would be benefited in another way by the change.
 
 310 THE TRIAL OF THE CONSTITUTION. 
 
 The evil influences of an inferior race on their civilization 
 >vouhI be mitigated. These influences must always be very 
 great, for reasons already mentioned, -with or -without slavery. 
 The new Africa that has been founded in America Avill always 
 have some of the characteristics of Africa. It is impossible to 
 introduce a barbarous population without introducing barbar- 
 ism. Africa in America is a fact, irremovable by any force 
 at our command. The only course is to accept the inevitable 
 and find out, if we can, some means to diminish its power. 
 
 One way w-ould be to lessen the injurious moral effects, that 
 the presence of a subject race must have upon the governing 
 race. These effects are greatly increased by slavery. The 
 best and wisest men are not fit to be trusted with irresponsible 
 power, would be injured by possessing it. What then must 
 be the effect of granting such power to a whole community, 
 of taking away from a class in it, so large as to come in con- 
 tact with every individual, all rights and all the guards which 
 the law furnishes against selfishness, passion and lust, even the 
 right' of self-defence ? What can be the result but a plentiful 
 crop of pride, arrogance, cruelty, and sensuality ? How- 
 destructive, too, to every noble and humane feeling must be the 
 habit of regarding men and women as property, the daily 
 spectacle of human beings, often intelligent and respectable, 
 often indeed almost white, sold in the market-place, the wife 
 before the eyes of her husband, the child torn from its parent. 
 These things cannot be done Avith impunity. They degrade 
 those who do them. The wonder is, not that the South has 
 become what it has, but that the noble elements of the Saxon 
 blood have withstood such influences so long, that so much 
 which is good and w'orthy is left in the South. Take away 
 slavery, and the negro race would be deprived of much of its 
 fatal power over the wliite. The slave trader, the slave auc- 
 tion, the slave hunt, the whip would disappear. The dangers 
 of servile revolt would also disappear. The negro would at 
 once become at least safe. He is not warlike or revengeful 
 or ambitious. He is contented Avith an inferior rank, because 
 it is his true rank. The Abolitionists could not, if he had it,
 
 SLAVERY. 311 
 
 make him dangerous. No "incendiary" lectures, speeches, 
 novels or pictures manufactured at the North, could excite 
 him. He need no longer be guarded and watched. He would 
 accept thankfully his proper place. So it has happened in 
 the West Indies. Millions were spent, before emancipation, to 
 put down insurrection ; not a dollar since. 
 
 Another way of diminishing the injurious influence of the 
 negro race would be to elevate the character and increase the 
 number of the white laboring classes. This can only be done 
 by furnishing them employment. They can have no employ- 
 ment without a demand for their labor. Why do " mean 
 whites" and "poor white trash" exist and increase in the 
 South ? Because they have no work. Therefore, they are 
 poor and ignorant and idle. Give them work and its rewards, 
 give them work that stimulates and exercises the superior 
 faculties of their race, let them taste the sweet bread that is 
 won by honest toil, and they will prefer it to fishing, hunting, 
 begging and stealing ; they will prefer decent raiment to rags, 
 and a comfortable house to a filthy hovel. Why does not the 
 white man work ? Is it because the negro is, by nature, more 
 intelligent, more industrious, more skilful than the poor Saxon 
 of the South ? No, but because the negro is a slave. The 
 stigma thus cast upon labor has its influence, but the monopoly 
 of labor, caused by slavery, has far greater influence. The 
 planter employs his own people, because he must. Out of his 
 fifty, one hundred, or five hundred hands, he has many who 
 are stupid, lazy, stubborn, worthless. He would discharge 
 them if they were free. He has some of his slaves educated 
 to be rude mechanics, carpenters, blacksmiths, wheelwrights, 
 for plantation work. He lives as far as he can " within him- 
 self." He employs no white man if he can help it. He looks 
 with disfavor on the growth of a respectable, intelligent, white 
 laboring class, — naturally enough, for it Avould undermine his 
 power. Destroy slavery, and, like other men of business, he 
 will employ the best labor he can find, the most skilful, the 
 most trustworth3\ The intelligence and energy of the Saxon 
 would thus come into free competition with the negro, and
 
 312 THE TRIAL OF THE CONSTITUTION. 
 
 gradually occupy the higher spheres of intlustry, as they have 
 done in the North. 
 
 By this process labor would become respectable, would be 
 rewarded, would aspire, would become skilful and educated. 
 The mechanic arts would be introduced and would flourish. 
 Manufactures would arise and the loom be brought where it 
 belongs, to the side of the cotton crop. The South would not 
 be dependent on Europe or the North for all the comforts 
 and refinements of life, but could have mills, machinery and 
 ships of her own, Avherever the climate permits the white man 
 to work. He can work throughout the Border Slave States 
 and in the hill country of the more Southern States. In 
 those regions the poor whites would be redeemed from their 
 degradation and liberated from their slavery. Free and intelli- 
 gent labor would create capital, capital would demand more 
 labor, which would come from other places, and an industrious 
 and thriving white population would thus be established, to 
 counteract the fatal tendencies and influences of Africa. 
 Africa Avould be confined to narrower limits, to places wliere 
 Africans alone can work. Should they become too crowded 
 there, vast tracts of tropical fertility a little further south are 
 ready to welcome them, are at this moment calling them. 
 The civilization of the South may thus be saved, her people 
 may thus hereafter live in an equal and real Union with the 
 North. 
 
 It is hardly necessary to say that such a plan would satisfy 
 the moral sentiment of the Northern people. A large majority 
 of them were willing to live under the Union as it Avas, until 
 the war demonstrated that to be impossible. Very few, even 
 among the most zealous Abolitionists, advocated sudden eman- 
 cipation. They are the supporters of a princij)le, the enemies 
 of a falsehood, and their object Avould be attained. Abolition- 
 ism would then have performed its work, and would withdraw 
 from the scene. The only cause that ever endangered the 
 Union Avould be withdrawn. The two billions Avould be safe. 
 It is true that prospective billions Avould be lost to posterity. 
 But contingent prospective billions do not easily raise armies
 
 SLAVERY. 313 
 
 to fight for them, more especially after the exhaustion of an 
 unsuccessful war. 
 
 But how can such a phin be executed ? Where is the power 
 to adopt and carry it out? In this, as in other cases already 
 referred to, the weakness of the central Government, accordino: 
 to prevailing opinions, is strikingly manifest. If those opinions 
 be correct, it has no power to save the Union or to save itself. 
 Can Congress abolish slavery in the States ? No, say the 
 doctors of the law, not even with the consent of all of them. 
 The thing must be done by each for itself, and by itself, or not 
 at all. Should it be done by the representatives of all in Con- 
 gress, the act would be void. Nay, it would be void after fifty 
 years of happy union produced by it, and could be set aside, 
 as invalid, by the Legislature of a State, or by a Federal court. 
 Is not the Constitution a finality, unless altered as directed by 
 itself, and is it not to be interpreted by itself alone, without 
 reference to practice or custom, or the consent of the people ? 
 
 An opportunity for doing this great work may be aiforded 
 by the Avar, a work which once done, would re-establish the 
 Union on firm foundations, and be received with acclamations 
 by the whole people. But such an opportunity may require 
 prompt action, and may not occur again. Fate, as Lord Bacon 
 says, sometimes presents to us the handle of the pitcher, and 
 if we do not seize it, afterwards the sides, which are hard to 
 clasp. 
 
 " There is a tide in the affairs of men, 
 Which taken at the flood leads on to fortune ; 
 Omitted, all the voyage of their life 
 Is bound in shallows and in miseries." 
 
 The object of this war is to vindicate the authority of the 
 Government, and to restore the Union. We expect to do this 
 by victory, by victory over a faction, if the rebellion be sup- 
 ported only by a faction ; by victory over the Southern people, 
 if it be supported by the people. We expect to reduce them 
 to submission by occupying their territory, their ports, their 
 cities, their rivers and railroads, by cutting off all the sourc(?S 
 of their prosperity. Let us suppose these objects accomplished, 
 and the Southern people tired of the war, unable to resist and
 
 314 THE TRIAL OF THE CONSTITUTION. 
 
 willins to come back into the Union. Miirht not the Govern- 
 ment say, " Shivery has proved itself the enemy of the Union, 
 inconsistent with any safe oi* peaceful Union. Come hack, but 
 on one condition, — that all children of slaves born after the 
 4th of July next, shall be free." A time may come ^vhen such 
 a proposition would be accepted, though afterwards it would be 
 refused. Shall we be told that Congress has no authority to 
 offer terms to a State, to impose conditions on a State : that if 
 the Southern States return at all, they must return with all 
 their constitutional rights ? 
 
 Let us suppose, as a result of the Avar, that they do so re- 
 turn and resume their old position in the Union and in Con- 
 gress. The calamities of the contest, the conviction that it 
 was caused by slavery, that slavery would forever be the fruit- 
 ful source of strife, if suffered to exist, might induce a majority 
 of Congress, including even some of the Southern States, to 
 accept a measure such as proposed above, if presented at the 
 moment when such influences were fresh, and before the in- 
 trigues of party had time to operate. But how could Congress 
 pass such a law ? What right have they to control the local 
 interests or institutions of the States ? Sovereign power over 
 these is reserved to the States by the Constitution. 
 
 It seems, then, that the Government is too weak to save or 
 preserve the Union, though the reserved powers of the States 
 are strong enough to destroy it. I have already endeavored 
 to show the fallacy of such a doctrine, and that it is supported 
 neither by reason nor by the Constitution. Should such golden 
 opportunities occur, it would be the duty of Congress to take 
 advantage of them, and thus restore, not the Union as it was, 
 but one safer and more desirable, because founded on truth 
 and not upon a lie. If they doubt their power, let them assume 
 the responsibility and trust to the peoi)le. 
 
 Nevertheless, nothing but necessity can justify the exertion 
 of the ultimate sovereignty vested in the Government. It is 
 intended, like the omnipotence of the English Parliament, for 
 (Extraordinary occasions only. When demanded by a great 
 emergency, when solicited by public opinion, it should be em- 
 ployed. Even then, if the proposed measure involve the fun-
 
 SLAVERY. 315 
 
 damental principles of the Government, resort should be had, 
 if possible, to the process of amendment authorized bj the Fifth 
 Article. Such a course would silence factious opposition, and 
 satisfy honest scruples. It would maintain and cherish a 
 wholesome reverence for .the Constitution, and tend to esta- 
 blish it more and more firmly, as time advances, on custom, 
 the only sure basis for law. 
 
 Slavery is permitted and protected by the Constitution. It 
 was a mistake, and we must get rid of slavery. The j)rinciple 
 of State power over local interests was also established by the 
 Constitution. That was no mistake, but is essential to our 
 system. The Constitution provides a way by which we can 
 get rid of slavery, without affecting the local power of the 
 States. It is not the only way, as I have endeavored to show. 
 It is not an easy way, but on the contrary, intricate and diffi- 
 cult. But, if it can be followed, it is the best way, simply 
 because it is the one expressly pointed out by the Constitution, 
 whilst others are impliedly authorized. Therefore we should 
 follow it if we can. 
 
 The dimensions of this war have become vast like our country 
 and its interests. The Southern people have displayed not 
 more courage and ability than were expected, but greater power 
 and resources than were expected. But the power of the North, 
 the force and will, the unity and intelligence of the people, are 
 equal to the occasion. They may be expected to be victorious, 
 more especially if the intervention of European nations be 
 withheld. The terms offered to the rebels are very simple. 
 The Government says to them, " Lay down your arms, submit 
 to the laws, send representatives to Congress, resume your 
 former position in the Union." The stress of the war may 
 force them to this. Would it then be impossible to obtain a 
 A'ote of two-thirds of Congress, to propose an amendment to 
 the Constitution, declaring that after a certain date no slave 
 shall be born in the United States ? 
 
 That would depend on the action of the Border States. 
 Eleven States out of the thirty-four would probably vote 
 against such a proposal, though of these, Virginia, Texas and 
 N^orth Carolina would be doubtful. Considering Maryland
 
 316 THE TRIAL OF THE CONSTITUTION. 
 
 sure to be in favor of such a plan, and the support of it by the 
 North sure also, its success would depend on Kentucky and 
 Missouri. Those States are now claimed as loyal. The num- 
 ber of slaves, and consequently, the value of slave property 
 the}^ contain is small. The persons directly interested in that 
 property form a small class, possessing far less influence than 
 the same class further South, where slavery is the supreme 
 interest and the supreme power. The soil of those States can 
 be cultivated by white labor, and Avhite labor would introduce 
 diversified industry, and speedily make them rival their pros- 
 perous neighbors in the North. Slavery must ere long disap- 
 pear from the Border States, and the people know it. They 
 know also that it Avould be a good thing for it to disappear. 
 Because of slavery, Kentucky and Missouri have been devas- 
 tated by war. After the lesson of such experience, a plan 
 that would respect existing interests and social organization, 
 that would not violate State rights, real or fancied, or shock 
 State pride, and that would but hasten an inevitable, antici- 
 pated and desired future, would appeal strongly to the intelli- 
 gence of the people. 
 
 The plan would find many advocates even in the more 
 Southern States. There Avas in them a large Union party 
 before the war. A large portion of their people are not slave- 
 owners, and care nothing for slavery except as marking the 
 distinction of race. The inhabitants of the hill country are 
 averse to slavery. The cause of secession found supporters 
 among these classes, because of the idea, industriously circulated 
 by political leaders, that slavery was threatened with unjust and 
 illegal attack ; that the rights of the South had been violated. 
 Menaced coercion caused irritation, and then actual war kin- 
 dled the passions that always accompany war, and swept the 
 masses into the current, to which direction had been given by 
 these leaders. Even now, there is reason to believe that the 
 ranks of the rebellion have been filled to a great extent by 
 force and terror, the SAvay of a dominant opinion, and ihe 
 power of a military government. When peace is restored, 
 these causes will cease to operate. A contest in which mili- 
 tary renown has been gained, and valor displayed by both
 
 SLAVERY. 317 
 
 parties, does not leave behind it animosities that cannot be 
 reconciled, more especially if it leaves common interests to be 
 secured. It cannot be expected, indeed, that the Cotton 
 States, should they be restored to the Union, would consent 
 to any plan of emancipation, hoAvever moderate, but there is 
 ground for hope, that if one Avere proposed, not as a trophy of 
 victory, not revengeful nor oppressive, they -would not resist 
 it by another war. 
 
 Should some such plan as that suggested be adopted, it 
 would be a signal and glorious triumph of reason, of humanity 
 and of free government. With slavery Avithdrawn from our 
 politics, which it can never be unless withdraAvn from our Con- 
 stitution, Avith a real Union founded on the basis of truth and 
 justice, Avhat limits could be assigned to the poAver, the 
 grandeur, the happiness of this republican empire of the 
 Saxon race ! 
 
 This Avar is groAving into formidable dimensions. The two 
 billlions make a desperate fight. But truth, humanity and 
 the Avorld's opinion are arra^^ed against them, and these are 
 stronger than cotton. The two billions cannot muster armies 
 enouo-h to defend a lie. The Gods have not abdicated their 
 heavenly thrones. Either violently in the midst of the Avar, 
 or peacefully as a consequence of the Avar, the untruth in our 
 Constitution is doomed to perish. This Avar is the death- 
 struggle of slavery. It may prove the birth-struggle of a ncAV 
 Union.
 
 318 THE TRIAL OF THE CONSTITUTION. 
 
 CHAPTER V. 
 
 DEMOCRACY. 
 
 In our day, the word democracy is generally understood 
 to mean a representative Government, elected by equal and 
 universal suftVage, and it is usual to call ours a Democracy. 
 Whatever, by reason of inherent tendencies, it may have in 
 effect become, there is no democracy in the Constitution. It 
 says not a word about universal su3"rage, but on the contrary, 
 expressly provides against its application to any department 
 of the Government, except one branch of the Legislature, and 
 to that it does not enjoin, but permits its application. The 
 President according to the Constitution is to be chosen, not 
 by a vote of the people, but by an Electoral College, which 
 shall be appointed " by each State, in such manner as the 
 Legislature thereof may direct." The Judiciary is appointed 
 by the President and Senate, and the Judges hold their offices 
 during good behavior. The people have no control over them 
 whatever. The Senate is chosen by the Legislatures of the 
 States, and represents the States, not the people. The choice 
 of the House of Representatives alone is by the Constitution 
 referred to the people, and it provides that those who vote for 
 it " shall have the qualifications requisite for electors of the 
 most numerous branch of the State Legislatures." • 
 
 When the Constitution was made, these qualifications varied 
 in the different States. In many of them a certain amount of 
 property was necessary to entitle a man to vote, and this last 
 vestige of conservatism may, perhaps, exist in some of them 
 now. Such a condition, or any other, may be imposed on the 
 right of suffrage hereafter at the pleasure of the States ; and 
 should the Union be restored, the Southern States will very 
 probably exercise this privilege, so that the Government may
 
 DEMOCRACY. 319 
 
 be subjected to democratic influences from one part of the 
 country, and to aristocratic or oligarchic from another. This, 
 indeed, has ah*eady happened, and with most pernicious results. 
 The Southern States, more especially the Cotton States, are 
 really aristocracies and oligarchies, with all the evil and few 
 of the good features of such forms of government. The go- 
 verning class is not a nobility, with the superior culture and 
 sentiment that accompany high birth. It is not founded on 
 hereditary landed property, the essential element of an aris- 
 tocracy, connecting it with the past and with the future, creat- 
 ing permanent wealth, independence of character, freedom of 
 thought, local attachments and the love of stability and social 
 order. 
 
 Being without the law or custom of primogeniture, estates 
 are divided by each generation, and old families decay, but 
 retain their pride and aversion to active industry and useful 
 pursuits. The distinguishing feature of Southern aristocracy, 
 however, is not land, inherited or purchased, but negro slaves, 
 either inherited or purchased ; and its connection with these is 
 not the humane relation of the old baron to his vassals, or of 
 the modern English lord to his tenantry and peasantry, or 
 even of the Russian noble to his serfs, who have personal 
 rights and a vested interest in the soil. The high moral influ- 
 ences of entire or qualified freedom of the inferior classes, and 
 the sj'mpathies created by a common country, and government 
 and race, are controlling and beneficial elements in all these 
 cases. The dependents of the Southern planter are slaves ; 
 they are of an inferior race, separated from his own by wide 
 gulfs of disparity ; they are not his countrymen ; the law does 
 not even class them as men ; they have no countrj", no govern- 
 ment, no laws, no rights ; they are property, and wholly sub- 
 jected to his arbitrary power. Because slavery and the negro 
 have prevented the growth of manufactures, commerce, the 
 mechanic arts and educated industry, earning comfort and 
 commanding respect, and have thus thrown all wealth into the 
 hands of the planters, they practically control the politics of 
 the South. Practically, because there is no class to oppose 
 them, but not legally. Theoretically, they are the fellow-citi-
 
 320 THE TRIAL OF THE CONSTITUTION. 
 
 zens of the " poor "vvliitos," "wlio seem to be regarded as a caste 
 lower even than the shave. Any one can be a phmter, hoAvever 
 vulgar, coarse and ignorant, Avho has money to buy land and 
 negroes. 
 
 This practical aristocracy, therefore, is subjected to no in- 
 fluences to secure high qualifications for the responsible duties 
 of government ; and as it has no legal rights as a governing 
 body, it has no legal duties, and therefore no responsibility. 
 For these reasons, its sole rule of action is likely to be its 
 own exclusive interest. Such a Government Avants the aristo- 
 cratic element, is a mere oligarchy, controlled by narrow views 
 and sordid motives, and is incapable of liberal desires for the 
 improvement of society or of the spirit of nationality. It will 
 almost of necessity sacrifice all other classes to its own, and 
 the whole country to its own section. To speak, therefore, of 
 the Southern slaveholders as an aristocracy in the European 
 sense, implying hereditary wealth, refinement, high culture, 
 legal position, political power and duty, coupled with responsi- 
 bility, love of country and interest in its general prosperity, 
 or as a bright conservative land of traditions and manners, 
 connecting the past with the future, is a manifest absurdity. 
 There is no resemblance between them and any past or pre- 
 sent aristocracy of Europe, except that they, of necessity, 
 possess most of the vices and evil tendencies attributed to the 
 worst. 
 
 It is not intended here to disparage the character of the 
 Southern slaveholders, but to speak of their necessary quali- 
 ties as a governing class. A Southern gentleman, a Southern 
 lady, warm-hearted, impulsive, high-spirited and refined have 
 been always appreciated and welcomed in the North. To their 
 influence, indeed, much of the power of slavery over Northern 
 opinion may be attributed. Noble traits of heart and mind, 
 elegance and grace, are of a nature to have spectators, and 
 thus win and conquer Avhercver they appear. But a reputa- 
 tion lingers sometimes after the substance out of which it grew 
 has disappeared. There are not so many Southern gentlemen 
 and Southern ladies now as formerly. Half a century or more 
 ago, the Southern planters in their tastes, habits, sentiments
 
 DEMOCRACY. 321 
 
 and manners, as "well as in their social position, bore much re- 
 semblance to the English country gentleman, that favorite of 
 history and romance. They had wealth, leisure, independence, 
 opportunity and inducement for mental culture, the salutary 
 retirement of the farm and plantation, the means for generous 
 hospitality, field sports and the wholesome physical and moral 
 influences, which mother earth exerts upon her lovers and ser- 
 vants. They were owners, generally hereditary owners, of the 
 soil, the only possible foundation for a real gentry or aristoc- 
 racy. But the subdivision of property, and the pernicious 
 influence of slavery, have told upon Southern society. The old 
 estates have been broken up, the old names have disappeared 
 or are rapidly fading away. When wealth goes, culture and 
 refinement, after a time, go Avith it, and are not restored by an 
 upstart growth of newly made wealth. Cotton, meanwhile, 
 has given hideous prominence to the sordid element of slavery. 
 In thought and practice, slaves have been for many years re- 
 garded more in the light of property than before, because they 
 have become five times more valuable ; and whilst this merce- 
 nary spirit has been stimulated into a noxious growth in the 
 planting States, cotton has created the business of slave-breed- 
 ing in the border States. 
 
 No gentry can withstand 'such influences. It must soon 
 cease to be a gentry; and when it falls, upon what can it 
 fall, and what can it become in the South ? Work it cannot, 
 for there is no work to be done. The South has neither trade 
 nor manufactures, nor the mechanic arts to afibrd worthy and 
 sufiicient employment to men of education. Where these are 
 wanting, the ranks of the professions are soon filled to reple- 
 tion. Small planters, living on fragments of a patrimonial 
 estate, must be poor ; therefore must become deficient in men- 
 tal culture and refinement of manners. The large planters 
 are new men, more especially in the Southwest, to which the 
 sceptre has departed from the Atlantic States. What, then, 
 has become of the gentry ? It has almost disappeared. It 
 is no longer a land and slave owner. It is selling cotton on 
 commission in the cities ; it is practising law and medicine in 
 towns and wretched villages, or in half civilized, half wild, or 
 
 21
 
 322 THE TRIAL OF THE CONSTITUTION. 
 
 half Avaste deserts of the interior. Before the war it croAvded 
 into the army and navy and bureaus at Wasliington ; it has 
 emigrated, and sought and found honorable employment in 
 the echoing paths of enterprise and industry of the North ; 
 or it is hanging round taverns, billiard-rooms, cock-pits, and 
 race-courses in the South, shabby and fine, proud, ignorant, 
 and idle. It is no longer governing the South, or cultivating 
 its soil. It is no longer sending Pinckneys, Rutledges, 
 Haynes, Draytons, Calhouns, Randolphs, and Prestons to 
 Congress, but Wigfiills and Slidells instead. It is no longer 
 spreading bountiful tables, and presiding over elegant festivi- 
 ties in old homesteads, for the old homesteads are falling to 
 pieces for Avant of broad acres to sustain them. The gentry 
 no longer exists, for the traces left in the Atlantic States 
 have no real influence. But land-owners and slave-owners, — 
 that is to say, speculators in land and negroes, who have 
 bought them to make money, — do exist ; and they bear far 
 more resemblance to Wall Street speculators in stocks, than 
 to a class of country gentlemen. Nevertheless, they now rule 
 the South, and have made war upon the Government because 
 they cannot rule the nation. It is a mistake, therefore, to 
 call the South an aristocracy, as is often done. That title it 
 no longer merits. It is now far more of an oligarchy, or a 
 government of the rich, — no matter how they became rich, — 
 and who therefore are not, because of their wealth, educated, 
 refined, or elevated above the habitual influence of sordid and 
 vulgar passions. 
 
 Now, it has happened that the Government of this country 
 has been, with short intervals, from the beginning under the 
 control either of the Southern aristocracy, or its successor, 
 the Southern oligarchy. T'he power and wealth of both have 
 been founded on the ownership of negroes, and the number 
 of owners has never exceeded three hundred and fifty thou- 
 sand ; or, making a fair allowance for those directly interested 
 in such ownership as members of a family, a million of the 
 Southern people, out of a population of ten or twelve millions. 
 There is nothing in our Constitution to forbid or prevent this 
 aristocratic or oligarchic influence. On the contrary, it may
 
 DEMOCRACY. 323 
 
 be constitutionally changed by the Southern States into a 
 legal, instead of a practical power, arising out of the ascend- 
 ency of a class. The suffrage may be restricted to the 
 owners of slaves, and the whole South be converted into an 
 oligarchy of the narrowest character, at the pleasure of the 
 Southern States ; and by such limited suifrage the President 
 and Congress, the House of Representatives directly, and the 
 Senate indirectly, would be elected. 
 
 Democracy, therefore, is not in the Constitution. The 
 direct action of universal suffi'age is indeed expressly pro- 
 hibited, except upon the House of Representatives, and both 
 that body and the Senate, and the President, — the whole 
 Government in short, except the Judiciary, may, at the plea- 
 sure of the States, be controlled by influences the very oppo- 
 site of democracy. 
 
 Whilst in the South the predominance of an aristocratic 
 element has degenerated into the sway of an oligarchy, the 
 power of democracy has steadily increased in the North. It 
 has abolished all restrictions on the right of suffrage ; it has, 
 in most of the States, seized even upon the Judiciary ; and it 
 has applied the ballot-box also to the appointment of sheriffs, 
 prothonotaries, justices of the peace, constables, and a multi- 
 tude of other petty officers, so that the masses exercise a 
 control over public aff'airs as absolute as is consistent with the 
 existence of a representative government. Equal and univer- 
 sal suff'rao-e, thus dominant in the Northern States, elects the 
 
 CD ^ ' 
 
 House of Representatives and the President. There is no 
 supreme interest or governing class in the North ; none who 
 are tempted by any motive to make an eff"ort to govern. 
 Property is so generally diff'used that all are interested in its 
 protection ; and though there are many rich men, there is no 
 permanently rich class. Hereditary wealth is rare, and con- 
 fers no influence social or political. Land is generally divided 
 into small farms ; activity and enterprise, stimulated by the 
 rapid development of the country, are constantly bringing 
 forward new men into the upper ranks, whilst those who have 
 inherited education and a position, but not fortune, easily find 
 a sphere of honorable and profitable activity.
 
 324 THE TRIAL OF THE CONSTITUTION. 
 
 Out of the large cities there is nothing that can be called a 
 mob. Throughout the vast farming regions of the interior, 
 though great wealth is not uncommon, moderate competence 
 and universal plenty prevail ; and with them a happy and 
 generous equality of manners, in which social superiorities are 
 recognized, without servility on the one side or condescension 
 on the other. Education also is general throughout the North. 
 It is impossible to say that any class, as such, is ignorant. 
 Whilst mental culture of a high order is rare, it is almost 
 equally rare among rich and poor ; and the standard of intel- 
 ligence among the masses is elevated. They participate, by 
 means of the press, in the action of the Government, and the 
 great movements of the world's rushing thought. Ideas now 
 are winged by steam, and fly across mountains and the Avilder- 
 ness into every remote nook of the country, and there find 
 minds and hearts ready to receive them. The present war 
 has displayed the wondrous power of the railroad and the 
 telegraph to enable a people to think simultaneously ; and has 
 showed, also, what a people able to think can do. 
 
 There is neither an educated, nor rich, nor poor, nor igno- 
 rant class in the North ; though there are poverty and wealth, 
 knoAvledge and ignorance. These are constantly changing 
 their subjects, and social distinctions are plainly though not 
 sharply defined or separated by steep contrasts and difficult 
 barriers. A general equality of condition, desire for material 
 well-being, love of home and domestic enjoyments, of industry 
 and its rewards, and consequently moral elevation and mild- 
 ness of manners, are the characteristics of Northern society. 
 
 One might think that the two sections of the country, 
 inhabited by a people thus constituted, would each find its 
 complement in the other. That as the cotton-fields of the 
 Soutli, the grain-fields of the West, the mills and workshops 
 of the East, supplied mutual wants, so the conservative ele- 
 ment of Southern society would give moderation and stability 
 to Northern democracy, Avhich, in return, would impart some- 
 thing of its own spirit of movement and progress to the aristo- 
 cratic and oligarchic tendencies of the South. So it hap- 
 pened till a recent period of our history. But action and
 
 DEMOCRACY. 325 
 
 reaction, centrifugal and centripetal force, must be nicely 
 adjusted to produce harniori}^ and order, both in the moral 
 and material Avorld. Should either predominate, confusion 
 and the crash of collision are inevitable. Under the free 
 scope left by the Constitution to the elements of Southern 
 and Northern society, slavery first caused discontent, which 
 ripened into discord, and that at length has reached the point 
 of open and destructive war. 
 
 The Constitution has failed to prevent this war. It left the 
 Government open to the action of the causes that pi'oduced 
 the terrible conflict which is now covering with blood and tears 
 and desolation some of the fairest regions of our country, and 
 which involves no less a stake than the life of tlie nation and 
 the hopes of the future. The Constitution is neither an aris- 
 tocracy nor a democracy, and makes no provision whatever 
 against the selfish and exclusive spirit of the one or the wild 
 license, the reckless passion and the blind folly of the other. 
 Whatever checks are to be imposed upon either must be im- 
 posed by the people of the States, that is to say, must be im- 
 posed by the people upon themselves or else by disastrous 
 events leading to violent revolution. It is expecting much 
 from an oligarchy to hope that it will deny its nature and re- 
 gard other interests than its own. It is expecting much from 
 the masses of the people, that they will voluntarily put re- 
 straints upon power, the free exercise of which they have once 
 enjoyed. Is it expecting too much ? Upon the decision of 
 that question the fate of this Government depends. 
 
 No one will deny that our present troubles grew out of the 
 antagonism between the North and the South ; but as is usual 
 in such cases, neither side is willing to take on itself the 
 blame. One party says that Abolitionism, the other, that 
 slavery was the cause of the war. They are right thus far, 
 each was a cause ; neither was the sole cause. It is very true 
 that if the Northern people had yielded to all the demands of 
 the South, or if the Southern people had been willing to abo- 
 lish slavery, or to impose upon it such restraints as Northern 
 sentiment required, there would have been no Avar. But 
 neither party would or could yield to the extreme views and
 
 326 THE TRIAL OF THE CONSTITUTION. 
 
 claims of tlic other. Between those, ho-\vever, there was a 
 safe path for both, tlie path of mutual forbearance and con- 
 cession, traced out in the Missouri Compromise by judicious 
 men, when the same question was agitated before. That com- 
 promise may be regarded as the expression of the general sen- 
 timent of the country when the action of South and North on 
 each other was safe and mutually beneficial. It gave us peace 
 for nearly half a century. It was sustained by the opinion of 
 the whole country. It was a solemn compact or bill of rights 
 between North and South, made for the sake of peace ; and 
 had it been kept, peace, because of slavery, might never have 
 been broken. But it was not kept. It was violated by 
 Northern Democrats for the purpose of conciliating the South. 
 The ill deed took the country by surprise. No warning had 
 been given, no expression of popular opinion from North or 
 South had called for such a step. But suddenly this law, 
 Avhich was more than a law, a compact of union and friendship, 
 was set aside by political managers, and all sectional and party 
 passions were roused from their long repose and summoned to 
 deadly strife. These furies obeyed the call, and we are now 
 in the midst of the results, — battle-fields soaked in brothers' 
 blood and daily telegrams of slaughter. 
 
 The repeal of the Missouri Compromise indicated a change 
 in the moral condition of the country. The governing class 
 in the South had degenerated, as already stated, into an oli- 
 garchy. It had lost the spirit of nationality and become ex- 
 clusive and sectional, wholly devoted to Southern interests and 
 objects. Northern politics had become corrupt. The quad- 
 rennial game of chance, called the election of a President and 
 the abuse of Executive patronage, had rendered public life 
 more a money-making pursuit than a career of honorable am- 
 bition. The Southern leaders of party joined in this game 
 Avith feelings less personal than those of their Northern friends. 
 They had a real interest to protect from threatened attack. 
 They were determined to govern the country, because they 
 feared that if they did not, their section would be governed by 
 their enemies. The Northern people had no vital interest 
 immediately at stake. The great majority cared little about
 
 DEMOCRACY. 327 
 
 a tariff, and acquiesced in slavery. The fanaticism of the 
 Abolitionists did not reach them. It was impossible to excite 
 them about a moral sentiment which touched neither their 
 material well-being nor their passions. When the people are 
 not excited, parties are easily controlled by politicians. The 
 leaders of the Democratic party, needed the help of the South, to 
 give them office and power. The people of the South needed 
 the Democratic party to defend them against the dreaded 
 strength of the Abolitionists. Both counted on the cohesive 
 power of party-spirit, the love of victory, the habit of acting 
 together and the disciplined organization of the Northern 
 Democracy. 
 
 They were right so far as slavery was concerned. It was 
 protected, not only by the Democratic party, but by the apa- 
 thy of the great majority of the Northern people, combined 
 with their good will for the South and love for the Union. 
 Slavery would have been safe had the Missouri Compromise 
 been respected. Even its repeal excited but little interest in 
 the North, because the results w^ere not obvious or immediate. 
 Its avowed object, to permit slavery to go wdiere the people of 
 the Territories wished to have it, did not seem dangerous or 
 unjust. There was nothing in such a purpose or result to 
 offend the Northern masses, certainly nothing to endanger the 
 ancient alliance between the South and the Democratic party. 
 But when it appeared that the real design of the measure was 
 to force slavery into the Territories, where the people did not 
 want it, where they earnestly protested against it, the case 
 was altered. The vital principle of American liberty was as- 
 sailed, the most sensitive and passionate instinct of the Saxon 
 heart was revolted, Democracy itself was contradicted and in- 
 sulted. Was it for this, then, that a fair and honorable com- 
 pact had been broken, and a great measure, designed and per- 
 fected by the patriotic labors of wise men, to promote union 
 and peace, and sanctioned by time and success, had been set 
 aside by demagogues ? Slavery instantly vanished from the 
 contest, or was only thought of as the abhorred cause of a 
 base bargain and a gross injustice. The pulses of the North 
 began to beat. The people were summoned from industry and
 
 328 THE TRIAL OF THE CONSTITUTION. 
 
 business to the contests of parties, else scarcely heeded. 
 When in rapid succession followed the violence and fraud, the 
 scenes of bloodshed and tyranny in Kansas, and finally the 
 monstrous outrage of the Lecompton Constitution, the ranks 
 of the Democracy wavered and broke, deserted by the best 
 portion of it, Avho preferred justice, liberty and their country 
 to party ties. Then followed the election of Mr. Lincoln, 
 which was the protest of Northern sentiment against Southern 
 dictation and Southern crime, not against slavery. And soon 
 after, when the South made Avar on the Government, America 
 displayed the sublime spectacle of the uprising of a great 
 nation, the unanimous and passionate rally of the people 
 around their flag. 
 
 Now, the question is, why were these things done ? It is in 
 no sense a party question, but is connected with principles of 
 our Government and elements in the character of our people 
 that command the future. The motives of the Southern 
 people, and the reason why those motives were free to govern 
 their action, have been already ejQDlained. But they could 
 have done nothing; without the consent and aid of the Demo- 
 cratic party. It was in the power of that party to say to the 
 South, at any step in the progress towards war, even the last, 
 " Thus far shalt thou go and no fiirther." Had the Missouri 
 Compromise not been repealed, there would have been no 
 war. Had the successful attempt to elect a Legislature for 
 Kansas, by force, not been adopted by the Democratic party 
 and its President as a party measure, there would have been 
 no war. Had the Government repudiated the abominable 
 laws passed by that Legislature, instead of using military 
 force to execute them, there would have been no Avar. Had 
 a Democratic President recommended the rejection of the in- 
 famous Lecompton Constitution, instead of attempting to force 
 it upon the Kansas people, there Avould have been no Avar. 
 When Mr. Lincoln Avas elected, and the Southern people Avere 
 threatening disunion and preparing for it, had they received, 
 not sympathy, but rebuke, from Northern Democrats and a 
 Northern President, there Avould have been no war. When, 
 at length, rebellion declared itself by action, and the Southern
 
 DEMOCRACY. 329 
 
 leaders began to enlist troops, and to seize on the forts, arsenals 
 and navy yards of the Government, liad a Democratic Presi- 
 dent used, Avith prompt vigor, the force at his disposal, and 
 called on the Northern people to support him in defence of 
 the (T0\-ernment, the rebellion would have been checked and 
 quelled ere it became dangerous. So that from the begin- 
 ning, as the leaders of the Democratic party had absolute 
 control over the causes that produced the war, it may be re- 
 garded as their Avork. They united Avith the South in every 
 step of its mad career, until the cannon of Fort Sumter broke 
 the spell, and revealed to them the surprising fact that Demo- 
 crats were, after all, Americans, and that the best and most 
 numerous portion of them had deserted the party for their 
 countr}^ 
 
 Was it to protect slavery that Northern Democrats sustained 
 the South in all its extravagant demands ? None knew better 
 than they that slavery was perfectly safe, whatever the alarmed 
 and exasperated Southern people might think, or be deluded 
 into imagining, of the power of the Abolitionists. Politicians 
 are experts in counting votes, and their business requires them 
 to be learned in the statistics of popular opinion. The Demo- 
 cratic leaders, therefore, were well aware that the Abolitionists, 
 as a political party, had no power, and that the great mass of 
 the Northern people w-ere Avilling, not to attack slavery, but 
 to defend it in all its legal rights. But if slavery w as menaced 
 by any party in the North, liberty and justice were assailed 
 in Kansas for the sake of slavery, and the Southern Demo- 
 crats distinctly threatened to destroy the Union if a Northern 
 candidate was elected President. That declaration did not 
 break up their connection with their Northern allies. It pro- 
 duced, indeed, a division in the party, but the extreme South- 
 ern section of it had a powerful support, in the North, at the 
 election which closed Avith the triumph of Mr. Lincoln, and up 
 to the beginning of the Avar, and indeed still has sympathizers 
 and Avell-Avishers in the North, although, Avith its candidate in 
 that election, it is now in arms against the Union. 
 
 These are remarkable facts. It is easy to understand how 
 the Southern oligarchy, Avith their one interest and one insti-
 
 330 THE TRIAL OF THE CONSTITUTION. 
 
 tution, on AvliicU all that tliej liavo and all that they are de- 
 pend, should be roused to passionate and reckless eftbrts to 
 resist any attack on slavery, so vulnerable to opinion, and 
 that they should be incensed at the reproach which such at- 
 tacks imply. But there is no slavery in the North. There 
 are no great interests in the North menaced by the Abolition- 
 ists, except, indeed, manufactures and trade, which are not 
 members of the Democratic party. The Missouri Compromise 
 certainly did not injure the North. No Government ever 
 pressed more lightly upon the people than ours, or made itself 
 felt so entirely by benefits, and not by burdens, as ours. No 
 one feared that it would or could, even in the hands of a 
 "Black Republican" candidate, oppress or injure any class in 
 the North. The Union has surely been an unmixed blessing 
 to the North, Avhatever may be thought of it in the South ; 
 and secession, should it succeed, and establish a prosperous 
 and powerful nation, founded on cotton and slavery, cannot 
 possibly be a good thing, — must, indeed, be an evil thing, — to 
 the Northern people, Democrats included. How is it, then, that 
 any portion of the Northern Democratic party conspired with 
 the South to repeal the Missouri Compromise, to overturn the 
 Government, and to destroy the Union ? 
 
 If one could answer that question, it would go far to explain 
 the true nature of Democracy in this country, to reveal its ten- 
 dencies and dangers, and to suggest the means of resisting 
 them. A tempest shows defects in the ship, and the strain of 
 this war ought to show to observant eyes the weak points of 
 our Constitution. Why did it not prevent the war ? Why is 
 the rebellion now more than a year old, yet still with armies 
 in the field, and the issue doubtful? To get at the true cause 
 of the mischief, Ave must first dispose of certain influences, not 
 strong enough to be causes. Slavery and its consequence, the 
 oligarchic element in Southern society, did not alone cause the 
 war, or rather were not the proximate causes of it, for sooner 
 or later slavery, Avhich is in its nature aggressive, must have 
 led to Avar. The South is Aveak, the North is strong. The 
 Avhole poAver of the South, as such, depends upon its alliance 
 Avitli some party in the North. Therefore, as already stated,
 
 DEMOCRACY. 331 
 
 however passionate, violent and aggressive the South might 
 have been, tliat party might have held it in check at any pe- 
 riod of the contest, from first to last, by resisting its unrea- 
 sonable demands. 
 
 Abolitionism did not cause the war. As a political power 
 it was weak, because as an element of popular opinion it Avas 
 weak. Its strength rested on disinterested enthusiasm for 
 abstract moral truth. Such enthusiasm is far above the 
 mental level of the masses of any country. That it should 
 reach them or move them to action, unless connected with 
 their own interests, is simply impossible. To feel any inte- 
 rest in a question such as the liberty or happiness of an inferior 
 and distant race, requires a high degree of intelligence ; to 
 feel enthusiasm on such a subject, to become fanatical about 
 it, requires culture and a sensitive moral nature, which can 
 be predicated only of a very small and select class. We 
 therefore find the Abolition sentiment confined almost ex- 
 clusively to New England, where property and education are 
 more generally diifused, where literature has a wider and 
 stronger influence, and where the love of liberty is more 
 intense, because the people are of purer Saxon blood, than in 
 other parts of our country. Even in New England, however, 
 the anti-slavery sentiment did not, among any large portion 
 of the people, reach the point of enthusiasm, leading to Abo- 
 lition as a measure of Government, or to interference with 
 Southern rights. It was controlled by the love of Union and 
 respect for the laws. Enthusiasm was the attribute of indi- 
 viduals and a small circle of their followers. A few persons 
 of eloquence and high intellect, unconnected with party inte- 
 rests or purposes, free from any personal motive or ambition 
 connected with the subject, but dominated by a great and 
 noble idea, were the fanatics who frightened and enraged the 
 South. One of them was a woman of genius, a true artist, 
 who shot at slavery some keen arrows, pointed with truth and 
 winged with fancy. Others were quiet scholars, students 
 and thinkers, such as Wendell Phillips, H. W. Beechcr, Theo- 
 dore Parker and Emerson, men whose works have given lustre 
 to the literary fame of the country, and whose most extreme
 
 332 THE TRIAL OF THE CONSTITUTION, 
 
 opinions arc on a level "with those of the same class in the 
 cultivated capitals of Europe. 
 
 Such opinions cannot become popular, any more than the 
 works of Bacon, Kant and Plato can become popular. Truth 
 must be concrete to reach the mind or touch the feelings of 
 the multitude. This deficiency and weakness in the cause of 
 Abolition the madness of the South supplied. They attacked 
 Northern rights for the sake of slavery. With inconceivable 
 folly they undertook to put chains on the stalwart limbs of 
 Northern strength. Then, for the first time, after the lapse 
 of many years, the masses of the Northern people were made 
 aware of the existence of slavery in the South as an important 
 national fact. Then, for the first time, they were led to 
 notice it with attention. The sight was not pleasant, for 
 slavery is far from beautiful, and at the moment its look and 
 attitude were not friendly, hostile indeed, giving tokens of a 
 disposition to threaten and command. Even then, however, 
 the proud North, conscious of strength ; the calm North, slow 
 to anger ; the patriotic and law-loving North, imbued Avith 
 the spirit of Union and nationality ; the humane North, think- 
 ing of the possible horrors of servile war ; the Saxon North, 
 sympathizing with their own blood in the South, which dis- 
 dains equality with the negro ; the manufacturing and com- 
 mercial North, not unmindful of cotton, — could not determine 
 to destroy slavery, ugly as it was, and an enemy full of spite 
 and venom. It went no further than to say, " Let us keep it 
 where it is. It is an ill-looking thing and a mischievous. 
 Not good can it do but evil, anywhere. The Southern 
 people, it seems, love and worship it. They are welcome to 
 it, but it shall not spread into the Territories. We intend 
 these as the destined seat of a great empire of Saxon liberty 
 and civilization, not as the home of Africa and slavery. The 
 Southern people broke the Missouri Compromise to carry 
 slavery nortli of its appointed boundary. We are thus re- 
 leased from that compact, and will carry freedom south of 
 that boundary." There is nothing abstract in these opinions, 
 no enthusiasm, no fanaticism. They are thoroughly practical 
 and thoroughly Saxon, springing directly out of the dominant
 
 DEMOCRACY. 333 
 
 passions of the race, love of power, love of liberty and love of 
 land. Dreamy reveries about educating the negro up to the 
 level of the Avhite, Utopian visions of a civilized Africa on this 
 or any other continent, wild plarts of general emancipation, 
 never entered the heads or the hearts of the people, never 
 voted for Fremont, never poured forth through all the hills 
 and valleys of the North, the fiery flood of feeling, which, by 
 the mercy of the Gods, floated Mr. Lincoln into power. 
 The privilege of not being governed by the South was what 
 the Northern people, being a majority, demanded ; liberty for 
 themselves, not for the negro, and so far as the Territories 
 were concerned, as a Western election song expressed it, 
 
 " The right to the soil, 
 And the right to toil."' 
 
 Abolition, therefore, as a sentiment, an opinion, a faith, a 
 fanaticism or an element of political power, Avas not the cause 
 of the war. 
 
 But it may be said the Republican party, because of the 
 opinions above expressed, held by the great body of it, did 
 cause the war. They attempted to restrain the South, they 
 implied disapprobation of slavery. But the repeal of the 
 Missouri Compromise and the results that followed, created 
 the Republican party. Until the occurrence of these events 
 there was no political party in the North, of any influence, 
 organized on the basis of opposition to slavery, nor would 
 have been, had the Compromise been observed. It was broken 
 for the purpose of securing Kansas to the South. Slavery 
 became aggressive and provoked Northern resistance, which 
 took the form of the Republican party, and this aggression, 
 which might have been checked, Avas permitted, encouraged 
 and adopted by the leaders of the Democratic party. The 
 forcible election of the Kansas Legislature by Missouri votes, 
 because thus supported, almost elected Fremont ; the Lecomp- 
 ton Constitution did elect Mr. Lincoln, and, notwithstanding 
 all these causes of complaint and irritation, the great mass of 
 this party never dreamt of any attack on slavery as a vested 
 interest and a Southern institution, but were at all times
 
 334 THE TRIAL OF THE CONSTITUTION. 
 
 ready to protect it in every constitutional right. The proof 
 of this is the nomination of Mr. Lincoln instead of Mr. Sew- 
 ard, the acknowledged leader and eminent man of the party. 
 His name had become so much identified with extreme 
 opinions on the subject of slavery, that he was dropped be- 
 cause it was feared that he could not be elected. Another 
 proof is that Mr. Lincoln, sustained by the great majority of 
 those who voted for him, has been from the first, and is at 
 this moment resisting the Abolitionists and defending slavery, 
 which even in the midst of a war of which it was the cause, 
 exists only by reason of the protection thus afforded by the 
 conservative men of the North.* With these may be classed 
 the party who voted for Mr. Bell. Their opinions varied but 
 little from the great body of the Republicans on the subject of 
 slavery, the difference between them, as parties, being that 
 the latter contained a certain proportion of Abolitionists from 
 which the other w^as free. Thousands hesitated between Mr. 
 Lincoln and Mr. Bell, and voted for the former only because 
 they did not think it possible to elect the latter. Thousands 
 voted for Mr. Bell only because they feared the Abolition ele- 
 ment of the Republican party. 
 
 Party names are here used only to represent certain opinions 
 and classes of the people. Democracy or popular government, 
 so far as it is established by our Constitution, is now on its 
 trial. It is very evident that our present troubles might have 
 been prevented by the exercise of sufficient intelligence by the 
 people. Truth and justice, had they guided the movements 
 of parties, would have prevented them. A defect, therefoi*e, 
 exists somewhere. If in any portion of the people, then the 
 Constitution should have excluded the influence of that por- 
 tion. If not in the people, then the machinery intended to 
 apply the popular will is badly contrived. If Democracy itself 
 be an evil and dangerous thing, then those who made the Con- 
 stitution should have imposed upon it eftectual restraint ; and 
 
 * On the clay these lines were written, May 20, Mr. Lincoln's Proclama- 
 tion was published, disavowing the act of General Hunter, who had just de- 
 clared all the slaves of Georgia, South Carolina, and Florida, free.
 
 DEMOCRACY. 3-35 
 
 we "vvlio hope to live under the Constitution must, if we can, 
 protect it and posterity from the danger of Democracy. We 
 have eliminated from the discussion, as not liavino; caused the 
 war, the Abolitionists, by which term we mean those who ad- 
 vocate interference with slavery in the Slave States, the Re- 
 publicans, the friends of Mr. Bell, and the Southern people ; 
 the last, however, only because they were too weak to perform 
 such a feat, without the assistance of some party in the North. 
 The Democratic party only remains, and on a previous page 
 has been mentioned as the cause of the war. By this was 
 meant its action as a party, by means of its constituted autho- 
 rities or leaders. Nevertheless, as it had such leaders, the 
 dangerous element of our Government, against which the Con- 
 stitution failed to provide, must lurk in this party. It was 
 always in alliance with the South, and always supported the 
 Southern side of the great issues that have divided the country. 
 It was honest in that support, and the alliance was beneficial 
 to the country, inasmuch as it was a check on sectional divi- 
 sions. But the alliance was maintained after it should have 
 been broken, and the support continued when it should have 
 been withdrawn. The exactions of the South, however, soon di- 
 vided the party. A large portion of it refused to accede to them, 
 and when the war commenced, gave their votes, their talents 
 and their blood to the cause of the Government and the Union. 
 This section was represented by Mr. Douglas. It is true that 
 he was the author of the Kansas and Nebraska Bill, by which 
 the Missouri Compromise was violated. But the construction 
 he put on that bill was, that the people of the Territories 
 should be at liberty to accept or reject slavery as one of their 
 "domestic institutions," a construction which, however uncon- 
 stitutional, accords with the instincts of the American people, 
 and with the principles of om* Government, the true doctrine 
 being that whilst Congress has supreme power over the Terri- 
 tories, constantly exercised from the beginning, to prevent or 
 prohibit slavery, yet the power ought to be used in accordance 
 with the wishes of the people of the Territories. Had it been 
 so used, there would have been no war, Tlie Douglas section 
 of the party refused its sanction to the Kansas outrages, and
 
 336 THE TRIAL OF THE CONSTITUTION. 
 
 helped to defeat the Lecompton Constitution. It certainly 
 was i:;uilty of repealing the Missouri Compromise, and it fa- 
 vored unAvorthy concessions to the South after the rebellion 
 beo-un. But it is believed since to have become merged into 
 the Republican party, or carried away by the current of pa- 
 triotic feeling, excited by the war, to give a hearty support to 
 the Government in its efforts to restore the Union.* 
 
 The pernicious element, therefore, which has shown itself so 
 poAverful for evil, does not infect the whole of that portion of 
 the people classed as the Democratic party. It is a fortunate 
 circumstance, arising from the condition of our country, that 
 social distinctions do not form the dividing lines of political 
 parties. The European idea of Democracy is, that it is the 
 government of the lower classes, therefore of mere ignorance 
 and poverty ; and, as a consequence, incompatible with the 
 security of order and property, and with the legitimate rule 
 of knowledge and intelligence. This is no doubt true of any 
 European nation, and is the reason why monarchy and aristoc- 
 racy are maintained, as the only defence against anarchy or 
 the degradation of government to the level of the multitude. 
 But the scope offered to enterprise and industry, the abundance 
 of cheap land, the vast undeveloped resources of the country 
 calling for labor, the ease with which property is acquired, the 
 absence of an ancient privileged class, the sentiments of 
 equality, and the constant exercise of political liberty, have 
 created a very different state of things here. The Avords 
 rabble, canaille, mob, are inapplicable to any considerable 
 portion of our people. Our " dangerous classes" are not 
 strong enough to create revolutions. Our working classes 
 have work, bread and liberty in abundance, without fighting 
 for them. They are prosperous enough to desire order and 
 laAV, intelligent enouoh to understand that these are essential 
 to their well-being, and are not jealous either of wealth or 
 political power, for they may aspire to both. 
 
 The Democratic party with us therefore is not a representa- 
 tive of mere numbers, brute force, ignorance and radicalism. 
 It does not make war upon, property, order, refinement and 
 educatioii, and therefore we are in no danger from attacks on
 
 DEMOCRACY. 337 
 
 the primary institutions of society, ft-om agrarianism, Social- 
 ism or red-republicanism, with which the rise of tlemocracy 
 threatens the nations of Europe. Nevertheless American so- 
 ciety is not entirely free from the elements of evil Avhicli per- 
 vade the lower classes in the Old World. We have an uncer- 
 tain and fluctuating, and there is reason to fear, increasing 
 quantity of poverty, vice and ignorance, collected for the most 
 part in our large cities, but also scattered abroad in manu- 
 facturing, and even in some rural districts. We have also the 
 Celtic race, unaltered through ages, and exhibiting the same 
 characteristics here as in France, Ireland, Wales, and the 
 Highlands of Scotland, possessing many fine qualities, but 
 unable to keep pace with the Saxon in the march of civiliza- 
 tion, and unable, as its history shows, to appreciate, establish 
 or maintain civil liberty. 
 
 Liberty combined with order and law, steady progress in 
 mental and material improvement, belong and have always 
 belonged exclusively to the Teutonic races. It is said that 
 there are now more Irish in this country than in Ireland. 
 They come here to work it is true, but also to vote. We are 
 told that they are soon merged in the great mass of our people. 
 But they are not merged. Everywhere they occupy the lowest 
 ranks of industry. Everywhere the American is the master 
 workman, takes as his right all the places which require 
 thought, and everywhere his mind guides the Celt, who per- 
 forms those labors which demand the least degree of mental 
 power. The Celt is the day laborer, the servant, seldom an 
 owner of land, a manufacturer or mechanic, has no aspira- 
 tions for improvement, rarely exhibits in his home and its sur- 
 roundings a love of order, comfort and neatness, and does not 
 like the Saxon carry in his brain wherever he goes, the idea 
 of towns, cities, schools, factories and free scope for effort, a 
 picture of a social condition, by which he is tormented until 
 he can realize it. As the Celt is incompetent for the higher 
 branches of industry, he is indiff"erent to their rewards. He 
 is capable of strong attachments, is passionate and impulsive, 
 fond of excitement, and a lover of war and glory. He thus 
 makes a good soldier, and has a natural tendency to esprit de 
 
 22
 
 338 THE TRIAL OF THE CONSTITUTION. 
 
 corps, and obedience to a leader. The Scottish clans, the in- 
 evitable military despotism of France, the thorough miion of 
 feeling and action among the Celtic population of Ireland, and 
 the control over the race exercised by the Catholic Church, 
 exhibit this tendency. The Celt is thus exactly what a leader 
 of any sort would desire, a passionate and devoted partisan, 
 ready to obey orders without asking questions. He is prized, 
 therefore, by a Highland chief, a Catholic priest, a French 
 emperor and an American demagogue. 
 
 The Celt has become a most important constituent of our 
 society. He is planted irrevocably in the middle and tempe- 
 rate zone of our country, as the negro is in the South. He 
 is far superior to the negro, — superior, indeed, to the Saxon 
 in some of his attributes, — more warm-hearted, generous and 
 enthusiastic, but he prefers war to peace, idleness to industry, 
 ignorance to knowledge, license to liberty and despotism to 
 republicanism. Natural laws provide that the races of men 
 shall remain separate. They will forever keep the Celt apart 
 from the Saxon in this country, as they have done in Europe. 
 Permanently, therefore, we have got both Ireland and Africa 
 in America. 
 
 The Germans who emigrate to our shores in such multitudes 
 are very different from the Irish, both in character and their 
 influence on the future. Some of them are of the loAvest class, 
 and bring with them only their poverty, ignorance, vices and 
 radicalism. Others, particularly from the North of Ger- 
 many, where the blood is more pure than in the South, are 
 intelligent, educated, skilled in various arts of industry and 
 possessed of property. They are all of the great Teutonic 
 race, capable of improvement, lovers of order and constitu- 
 tional liberty, of science and literature. These attributes, as 
 Avell as their kindred blood, assimilate them to the Saxon, 
 with whom they eagily amalgamate, and thus, unlike the Celt, 
 become soon really merged in the great mass of the American 
 people. 
 
 Now most of these elements of American society which may 
 be classed as dangerous, belong to the Democratic party. 
 The Celtic portion of the Irish population, that is, the Catho-
 
 DEMOCRACY. 339 
 
 lie Irish, belong to it exclusively. The German emigrants, 
 more especially the radical part of them, attracted by the 
 name, belong to it very generally when they first arrive, but 
 neither they nor their descendants adhere to it with tenacity. 
 The foreign population includes most of the vicious, ignorant 
 and disorderly elements of our society in town and country. 
 Our prisons and almshouses do not contain many Americans. 
 There are no doubt drunkards, paupers, idlers, rowdies and 
 criminals among our people, but they do not belong exclu- 
 sively to any party, although it may be said, that they have a 
 natural inclination to Democracy in the European sense, that 
 is to say, against the sober and conservative principles of 
 order and obedience to law. 
 
 Equality of condition, such as exists in our Northern States, 
 induces a tendency towards the formation of parties, and a 
 habit of obedience to party discipline. A vast multitude of 
 individuals, with no persons or classes among them much 
 more forcible than the others, or distinguished by marked dis- 
 parity of wealth or knowledge, feel the necessity of govern- 
 ment for the sake of security and tranquillity. They difler in 
 their views, and thence parties arise. But each member of 
 the party being weak, knows that he has strength only as a 
 member, and that the efficiency of the party depends on its 
 organization, just as each soldier of an army knows that he 
 himself is nothing out of the ranks, and that the success of 
 the cause in which he is engaged, ae Avell as his own safety, 
 depend on discipline and obedience. Now ignorance is weak- 
 ness, and poverty is weakness, and the party, therefore, which 
 contains the largest proportion of these, will be the most 
 thoroughly controlled by party rules, and will yield the most 
 implicit obedience to its leaders. Intelligence likes to judge 
 for itself, wealth inspires a sense of freedom and independence. 
 Their demands must be satisfied, and therefore, the vote of a 
 party which is composed for the most part of the rich and 
 educated, is not to be counted on with certainty. In an aris-
 
 340 THE TRIAL OF THE CONSTITUTION. 
 
 tocracy, individuals are powerful ; in a republic, interests and 
 opinions. Great interests, such as commerce and manufac- 
 tures, demand protection, and great principles, appreciated 
 and valued by cultivated intelligence, demand satisfaction. 
 Ignorance and poverty make no sucli demands, because they 
 have no such wants. Nevertheless they love power and vic- 
 tory, and these are all they ask of their party leaders. 
 
 This analysis of American society Avill explain the causes of 
 the war. The alliance of the South was necessary to give 
 power to the Democratic party, and the South demanded com- 
 pliance with all its demands as the price of power. The leaders 
 of the party counted on old ties and sympathies, discipline, 
 organization, and the possession of power to secure the adhe- 
 sion of its members. They counted on old party cries and 
 prejudices, on the Celt and the roAvdy, the grog-shop and the 
 alley, Tammany Hall and the Empire Club, But they went 
 too far. They left out of their calculations the great fact of a 
 human conscience, of moral sentiment, of the American inbred 
 love of liberty. They thus divided their party and caused its 
 defeat, but not in time to save the country from a dreadful war 
 and a doubtful future. A corrupt alliance between Southern 
 oligarchy and the evil elements of Northern democracy, has 
 produced a contest between both and the American people, 
 which threatens, and may yet destroy our Government and the 
 Union. Southern oligarchy is founded on the negro ; Northern 
 democracy is in the Middle States dangerous, because of the 
 Celt. Are then liberty and civilization here as in Europe to 
 be confined to the North ? Is it true that neither can flourish 
 except where the snow-flajie falls ? That the energetic, Teu- 
 tonic man, bold, adventurous and constructive, whenever he 
 advances into the fertility and beauty of temperate and South- 
 ern climes, must in the end recede before the Celtic and the 
 dark races, and find a home only among rocks and mountains, 
 ice and granite V 
 
 Regarding the war as a test of the Constitution, one im-
 
 DEMOCRACY. 341 
 
 portant fact has been developed in its origin and progress : it 
 is the work of a small minority of the people ; not a minority 
 resisting the tyranny of a majority, but an aggressive, violent 
 minority or faction, making an unjust assault on the Govern- 
 ment. A portion of the Southern people in combination with 
 a section of the Democratic party, or rather the political 
 leaders of each, expecting the support of the whole party, 
 caused the Avar, And these are precisely the dangers under 
 Democratic institutions, the sway of demagogues arising from 
 the indifference of the masses to political questions, and the 
 ease with which the people are deceived, because of their in- 
 ability to judge immediately of the tendency and results of 
 important measures. The multitude rarely reason, and do not 
 see events in principles and effects in causes. Absorbed in 
 private occupations, having few opportunities for the discussion 
 and mental collision that elicit thought, reading chiefly their 
 party newspapers, the mass of men are prone to put their faith 
 in established guides. Not till erroneous principles have 
 brought about disastrous events, not till dangerous causes 
 have produced the fact of evil, are the people roused, and then 
 it may be too late. Eternal watchfulness, as has often been 
 said, is the price of liberty. It is also the price of safety in a 
 democracy, more especially in periods of tranquil prosperity, 
 when the love of material well-being engages all minds, and 
 rapid wealth inspires a universal greed of gain. Public opinion 
 thus becomes utilitarian, politics a trade. The spiritual powers 
 that rule mankind are invisible to the eye of sensuality, and 
 when all classes are alike busy in one engrossing pursuit, with 
 no Brahmins for moral guides, and no sentinel on the watch- 
 tower to sound the alarm, the enemy may easily enter the gate, 
 and the castle be surprised and taken. Peace and plenty 
 enervate a people. Moral sentiment is weakened by the taste 
 for riches and the habit of sensual enjoyment, the external 
 overpowers the internal, matter dominates over mind and dulls 
 the soul to the spirit of patriotism and of freedom. 
 
 "For what more oft in nations grown corrupt, 
 And by their vices brought to servitude, 
 Than to love bondage more than liberty ; 
 Bondage with ease, than strenuous liberty."
 
 342 THE TRIAL OF THE CONSTITUTION. 
 
 Into this bondage the country was gradually falling. The 
 dio-nity, the honor, the independence, the respectability and 
 self-respect of the North were in far greater danger from the 
 combined powers of slavery and the Democratic party, than 
 the South ever was from Northern opinion. The material 
 benefits conferred by the Union were so obvious and so vast, 
 that it came to be valued over much, because valued chiefly for 
 these. Slavery acquired undue importance, because its pro- 
 tection was regarded as essential to the Union. Every new 
 demand of slavery Avas accompanied by a threat of secession, 
 if not granted. To resist these demands, therefore, was to 
 endanger the Union. 
 
 This argument was constantly used, and with great and in- 
 creasing efl"ect, appealing as it did to love of country, to love 
 of peace, and to love of money. It was resisted by the few 
 who prefer truth and justice and the eternal right, to all of 
 these. But their voices could not penetrate the thick folds of 
 selfish conservatism, nor reach the minds of the people, unless 
 aided by the clarion blast of deeds and facts. We may thank 
 the South and the Democratic politicians for the gross outrages 
 and crimes that, at length, broke the spell which was gradually 
 spreading its slumberous and fatal influence over the nation. 
 Had party leaders been more adroit, we had been lost. Hard 
 blows, like Kansas raids, the Lecompton Constitution, and 
 hauling down our flag at Sumter, were necessary to rouse us 
 from our false security, our base compliances and our dreamy 
 lethargy. We had become worshippers of cotton and corn, of 
 farms and mills, of banks and railroads. When the South 
 threatened disunion, vested interests turned pale. The one moral 
 element left in the politics of the country was Abolitionism. 
 It alone spoke of duty, of truth, of justice, and a higher law 
 than the rules of arithmetic or the Constitution. It was 
 answered by the cry of cotton, commerce. Union, the Consti- 
 tution, and cent per cent. These were not ashamed to ridi- 
 cule any higher law. Abolitionism was weak. It was stifled 
 and overcome by prosperity and the Democratic party. The 
 term Abolitionist became a word of reproach, and every man 
 Avas called an Abolitionist Avho did not echo the extreme
 
 DEMOCRACY. 343 
 
 sentiments of the South. To hint that slavery was an evil, 
 that slave-trading and slave-breeding were inconsistent with 
 any high standard of Christian civilization, that slaves were 
 really men, and not mere things, was to be an Abolitionist. 
 
 Those who ventured to express such opinions found them- 
 selves coldly received in society, if not excluded from it. 
 The entrance into public life, except in certain very limited 
 districts, was barred against them. Gentlemen of literary 
 reputation, who had the hardihood to utter these sentiments 
 in Northern cities, were mobbed, and, with their audiences, 
 required the protection of the police. They were accused of 
 uttering "incendiary doctrines," which might incite the slaves 
 to insurrection. It was said that such things were " oifensive" 
 to the South, and might "irritate" them to destroy the 
 Union. What, then, would become of our Southern trade, 
 and our vested interests ? Even after the rebellion was ac- 
 tually in arms, vested interests called town-meetings, depreca- 
 ting Southern wrath, offering "concessions" to the South, 
 and promising that the North should behave better in future. 
 Had the mad South even then been able to see its true posi- 
 tion, and frankly yielded, willing to take its chance with its 
 old all}^ to help it, under Mr. Lincoln, the storm would have 
 passed away ; the cry against Abolitionism would have been 
 revived ; free speech and a free press on the subject of slavery 
 would have been silenced; and the impudent threat of a 
 Southern senator, that he would ere long call the roll of his 
 slaves on Bunker Hill, might perhaps have been executed. 
 But the boom of Sumter's guns reached the farm-houses and 
 Avorkshops, — reached the real people, and thrilled their hearts. 
 Their country's flag fired on by traitors, was not an abstract 
 principle. It was something concrete, which they could 
 thoroughly understand. They did not wait to think, but 
 leaped at once to action. It is but just to say that vested 
 interests; commerce and manufactures, banks and railroads, 
 mortgages, ground-rents, and scrip, were touched by the same 
 noble rage, and poured out freely both their money and their 
 blood. It was and is a noble spectacle, and will do more to
 
 344 THE TRIAL OF THE CONSTITUTION. 
 
 make us a nation tlian years of peace, prosperity, and clema- 
 gogueisra. 
 
 It thus appears that the -war was caused by the politicians, 
 and not by the people. Even in the South, except in South 
 Carolina, a majority of the people were opposed to secession. 
 So they voted when they were allowed to vote, notwithstand- 
 ing all the efforts and arts of the politicians, to "fire the 
 Southern heart," by passionate harangues and gross misrepre- 
 sentations. Most of the Southern States were precipitated 
 into secession by the official acts of partisan leaders. The 
 great majority of the Northern people, as already shown, 
 were loyal and friendly, — almost submissive to the South. 
 The fact, therefore, that this war has been caused by politi- 
 cians, acting against the wishes of the people, must be attri- 
 buted to some defect in the electoral machinery of Govern- 
 ment, by which it fails to represent, and carry out promptly 
 and truly the enlightened opinion of the nation. The Consti- 
 tution, as already stated, provides no such machinery, except 
 for the election of a President, and this has not been used. 
 But the politicians have invented an instrument of their own, 
 called a nominating convention, and have applied it not only 
 to Presidential elections, but to all others. The merits and 
 defects of this machine have been discussed in the chapter on 
 Executive power. Obviously its tendency is to concentrate 
 the control of the political action of the country in a few 
 hands. The conventions are really electoral colleges. They 
 really choose all the officers of the Government not appointed 
 by the Executive. They present lists of candidates to the 
 people, and no one can be elected not on those lists. 
 
 The action of the people, therefore, is indirect. Their 
 opinions, in passing through another body, are discussed, 
 modified, sifted, and winnowed according to the character of 
 that body. It is obvious, therefore, that on the organization 
 of nominating conventions the whole Avorking and success of 
 the Government depends. They may, according to their 
 nature, become an admirable contrivance to moderate the 
 passions, check the rashness, correct the ignorance, and repre- 
 sent the wisest and best opinions of the people; or they may
 
 D E M 6 C R A C Y. 345 
 
 serve only as blind agents of reckless popular folly and preju- 
 dice; or they may pervert the immense poAver intrusted to 
 their hands into an instrument of corruption and selfish gain. 
 As it is impossible for the people to select candidates for 
 themselves, some plan of part}' action, by which they can be 
 selected and presented to voters, is matter of absolute ne- 
 cessity. 
 
 The only plan yet devised is the election, by each party, of 
 men chosen for that purpose, who are" supposed to be ac- 
 quainted with the wishes of the people of a district, and with 
 the qualifications of aspirants for office. But a double duty 
 is thus imposed on the people. They must first vote for the 
 convention, and again for the nominees of that convention. 
 The first duty is habitually neglected by the busy and active 
 portion of society, unless their interest is excited by some 
 crisis in public affairs, and often not even then. The regular 
 elections appointed by laAV are so numerous, that they make 
 large demands on the time and attention of the people. 
 Many do not care to vote at all. The farmer Avill not leave 
 his plough, the merchant his counting-house, the mechanic his 
 workshop. The election for a nominating convention is 
 generally unheeded by those whose influence would be most 
 important. The choice of delegates falls into the hands of 
 party leaders, supported by that numerous class, who, having 
 no absorbing interests or duties of their own, love the excite- 
 ment of politics. The least intelligent part of the people, 
 therefore, — those who are most easily excited and drilled for 
 party action, really do, in the normal condition of affairs, 
 elect the conventions. 
 
 The consequence must of necessity be, that men unfit for 
 so responsible an office are frequently chosen. Too often they 
 are unable to appreciate the qualities necessary for public 
 trust. More frequently they view such qualities with aver- 
 sion and dread. Men of honorable character and cultivated 
 minds are not likely to become pliant tools in the hands of 
 party managers; nor do such men care to solicit the votes of 
 demagogues and trading politicians. The convention natu- 
 rally selects those who are like its own members in social
 
 346 THE TRIAL OF THE CONSTITUTION. 
 
 rank, manners, and education ; why not also confederates in 
 their own dishonest and selfish designs ? A convention is open 
 to every sort of intrigue and corruption. Its organization 
 affords no security for the intelligence and purity of its 
 character, which, if evil, effectually bars the entrance into 
 public life against the best talent and highest virtue in the 
 country. Yet to such hands the politics of the whole country 
 are confided. The conventions select the President and Vice- 
 President, members of Congress and of the State Legislatures, 
 State officers, and a host of other officers who wield the power 
 of the Government. 
 
 We see the result. Public life is shunned by men of culti- 
 vation and refinement. Official station implies neither high 
 character nor high ability, and confers no distinction. But it 
 confers the opportunity to make money, and to enrich rela- 
 tives and friends. The consequence has been, a degree of 
 corruption disgraceful to the country and the age. The 
 "lobby" has become an institution, — a sort of sub-Legisla- 
 ture or "Kitchen Cabinet." At every session of Congress a 
 committee is appointed to investigate the frauds of its mem- 
 bers and of the Executive departments. Bribery is almost 
 acknowledged as a part of legislation, wdiilst dishonest jobs 
 and contracts so abound, that they are regarded as things of 
 course. Even in the midst of the patriotic and noble feeling 
 produced by the rebellion, the large expenditure caused by 
 the war has called forth hordes of greedy speculators, who 
 have grown rich on the plunder of the people's money. The 
 habit had been formed ; the management of parties had already 
 fallen into the hands of gamblers and traders in votes and 
 oflSces, who have plied their business, all the more briskly, be- 
 cause the dangers that beset the country multiplied the oppor- 
 tunities of profit. Everything has long been bought and 
 sold, — legislation for the benefit of corporations and cliques 
 of capitalists ; grants of public lands ; official influence ; even 
 the ability to introduce applicants for jobs to those who give 
 jobs. 
 
 This fi-ightful venality rivals the abuse of Executive patron- 
 age, in its degrading and poisonous influence on the Govern-
 
 DEMOCRACY. 347 
 
 ment, and on all classes of the community. The cause of 
 these evils is not the ignorance of the people. Every one de- 
 plores them, wonders at them, yet cannot think of a remedy. 
 The Government is below the mental and moral level, even of 
 the masses. Go among them. Talk to the farmer in his field, 
 the blacksmith at his anvil, the carpenter at his bench, — even 
 the American laboring man who works for hire, in the North- 
 ern States, — and compare their conversation, so full of good 
 sense and sound feeling, with the ignorance, vulgarity, per- 
 sonality and narrow partisan spirit of an ordinary Congres- 
 sional debate, and with the disclosures made by investigating 
 committees. Evidently the mind and moral sentiment of the 
 people are not represented. Visit a rural hamlet. Put up 
 your horse at the best inn, and find out, from the communica- 
 tive landlord, Avho are the men in the neighborhood most re- 
 spected for their intelligence, property, and probity, — whom 
 people are glad to consult, and make their trustees, executors 
 or guardians of children. You will be told that they are the 
 owners of the Avell-cultivated farms, with their substantial 
 barns and houses, you have just passed on the road, — of the 
 comfortable mansions, surrounded by trim gardens, in the vil- 
 lase itself. Then ask if these men are members of Congress 
 or of the State Legislature, or if they Ire delegates to nomi- 
 nating conventions. The landlord will smile at your question. 
 No, indeed. These men are not politicians. All business of 
 that sort is managed for the county by Messrs. Quirk, Gam- 
 mon and Snap, the attorneys, — smart, sharp, active men, who 
 have risen from practising law to practising politics, — mem- 
 bers of a profession which has a great deal to do with govern- 
 ing the country, and who sometimes carry with them, into 
 public life, the ignorant prejudices, the narrow views, and also 
 the habit of taking fees, acquired at the bar. 
 
 It is an obvious truth, that the afi"airs of a civilized and 
 powerful nation must be managed, not by ignorance, but by 
 knowledge, — not by folly, but by wisdom. The success of a
 
 348 THE TRIAL OF THE CONSTITUTION. 
 
 democratic Govcniment depends -wholly upon the general in- 
 telligence of the people. But what does it avail if that intel- 
 ligence cannot be applied, — if, through some defect in the ma- 
 chinery of government, an irresponsible power, unknown to 
 the law, be created, which rises up between the people and the 
 public good, and, professing to represent the former, substi- 
 tutes, for their convictions, sentiments and interests, its own 
 plots and plans, petty aims, partisan hates and selfish private 
 ends. The sum total of all the purposes of Government is to 
 get good men into power. Have nominating conventions done 
 this ? Until the accidental selection of Mr. Lincoln, has not 
 a generation grown up to manhood since we have had a Presi- 
 dent who could command the respect of any rational being ? 
 Were Buchanan, Pierce, Polk, Harrison, and Taylor, fair rep- 
 resentatives of the American heart and intellect? Since Clay, 
 Webster and Calhoun left Congress, how is it that eloquence 
 and wisdom, knowledge and culture, have left it also, and that 
 its debates, with few exceptions, have inspired nothing but 
 loathing and contempt? Why is it that, plunged suddenly 
 into a stormy sea of peril, one man only, in public station, 
 and he a stranger, attracts the respect and confidence of the 
 people, and that we open each day's report of the proceedings 
 of Congress, not with hope, but with dread ? Why is it that, 
 not mediocrity of talents, morals, and attainments, but a lower 
 level than mediocrity, is the rule of ofiicial station ; and that 
 now, as for many years past, — 
 
 " It sounds like stories from the Land of spirits, 
 If any man obtain that which he merits, 
 Or any merit that which he obtains?" 
 
 These evils are the work of nominating conventions, badly 
 organized, — of a secret, silent, irresponsible power, born, in- 
 deed, of an inevitable necessity, but unknown to the Constitu- 
 tion and ungoverned by law, which has woven its network of 
 invisible chains around the mind of the people till they cannot 
 stir, except at its bidding. Nominating conventions and their 
 nominees form, in fact, an association of affiliated societies, 
 which has taken into its charge the government of parties, and
 
 D E M C 11 A C Y. 349 
 
 therefore of the nation. Under its fosterino; care the foul wa- 
 ters of corruption have inundated every department, avenue 
 and crevice of our politics, and its reckless hand laid and fired 
 the train which has exploded the passions of the people into a 
 widcspreading conflagration of war. 
 
 Carlyle lias well said: "Given the men a people choose, 
 the people itself, in its exact worth and Avorthlessness, is given. 
 A heroic people chooses heroes and is happy ; a valet or flunkey 
 people chooses sham heroes, what are called quacks, and is not 
 happy. The grand summary of a man's spiritual condition, 
 what brings out all his herohood and insight, or all his flunkey- 
 hood and horn-eyed dimness, is this question put to him, What 
 man dost thou honor ? What is thy ideal of a man or nearest 
 that ? So, too, of a people. . . . Nor are electoral methods, 
 reform bills and such like, unimportant. A people's electoral 
 methods are, in the long run, the express image of its electoral 
 talent ; tending and gravitating perpetually, irresistibly, to a 
 conformity to that, and are at all stages very significant of the 
 people." 
 
 The electoral method called nominating conventions, as at 
 present constituted, is not the "express image" of the mind 
 and character of the American people, fortunately for us and 
 for the experiment of Democratic Government. They submit 
 to it of necessity. Some electoral method they must have, and 
 no wise man has yet appeared to suggest a better or to alter 
 or improve the present. It has not offered to the people men 
 whom they can honor, but has fallen far short of their ideal. 
 So far from honoring the quacks and shams often presented to 
 them by the conventions, the Government had, before the war, 
 fallen into contempt. Confidence and respect have, for many 
 years, been leaving it rapidly, and with them power. Nothing 
 is more common than complaints of the action of the conven- 
 tions. Parties are sometimes defeated because of the infamous 
 character of the nominations. Thousands refuse to vote at 
 all, unable to decide between degrees of incompetence and 
 shades of guilt. At length, during the last administration, 
 corruption and imbecility, ignorance and baseness, brought 
 public affairs to such a pass that the party in power broke
 
 350 THE TRIAL OF THE CONSTITUTION. 
 
 down amid the universal derision and scorn of the people. 
 The election of Mr. Lincoln was a protest of the revolted con- 
 science of the country against the foul abuses of the Govern- 
 ment. The war is another protest of a similar kind. The 
 f^rcat uprising of the nation is a proof that the electoral ma- 
 chine has not worked well ; that if it winnows the opinions of 
 the people, it gives them not the grain but the chaff, and that 
 some other machine is imperatively demanded to represent 
 their intelligence and moral sentiment. 
 
 The present hour is full of signs and warnings for our in- 
 struction. It is a product of all the past, it contains the seeds 
 of the future. It is for us to heed its monitions, to study its 
 lessons, to answer its questions. Let us know one thing for 
 certain, that our public and political life of the recent past is 
 a dead carcass that poisons the air, and must be buried forever 
 out of sight. Somehow or other the voice of the people must 
 be permitted to sound and must be obeyed ; their convictions 
 and feelings must be expressed and must rule, or peace and 
 union, order and liberty, cannot be restored and preserved. 
 Abuse of Executive patronage, official venality, partisan alli- 
 ance with slavery and the sway of demagogues must cease or 
 we are lost. We have been called a prosperous and contented 
 anarch}'. But we are no longer prosperous and contented. 
 We have made idols of cotton and corn, of negroes and cent 
 per cent, and fallen down and worshipped them, and now we 
 feel tlie vengeful arrows of the Lord. 
 
 Wealth is poverty and prosperity calamit}^, when the invi- 
 sible and spiritual guides arc no longer obeyed, for they alone 
 lead to happiness and peace. " Be not deceived; God is not 
 mocked ; for whatsoever a man soweth that shall he also reap. 
 lie that soweth to the flesh shall of the flesh reap corruption." 
 AikI what is corruption l)ut deatli ; death to the soid of a man, 
 death to the honor, the glory, the power, the liberty and the 
 true life of a nation. History records many such deaths. 
 Our American society has been described as anarchy, plus the
 
 DEMOCRACY. 351 
 
 street constable. Anarchy of opinion, of passion, of sections 
 and parties we have long had for want of a true Government. 
 We shall not long keep even the street constable, unless some 
 means be speedily discovered to restore respect to the autho- 
 rity of the law, by making those who exercise it respectable. 
 
 What is democracy? Is it, according to the generally re- 
 ceived opinion, the government of the laboring classes, and the 
 disfranchisement of property and cultivated intelligence ? If 
 so, democracy is the government of a privileged order, and 
 that the least fit to govern. Aristocracy or monarchy would be 
 far better ; oligarchy, or the government of mere wealth, could 
 not be much Avorse. Acquired property is the symbol of energy, 
 intelligence and active usefulness ; knowledge is the highest at- 
 tainment and distinction that man can reach ; each, if not 
 entitled to rule, has a right to a fair share of power over 
 society ; nor can they be excluded from it without destroying 
 civilization. 
 
 The definition of democracy, therefore, as the tyranny of 
 mere numbers, cannot be accepted by the American people. 
 Though less immediately destructive here than in Europe, it 
 would check our progress in all liberal pursuits, and in time 
 undermine society by the eating canker of corruption. Pro- 
 perty, if denied a representation, will protect itself by bribery, 
 and the tribunes of the mere multitude would be tempted to 
 seek office for the sake of illicit gain. Already the tendency 
 to this degradation is clearly marked in our politics. The true 
 idea of democracy, the only one consistent with liberty and 
 civilization, is, that it is the government of society by the 
 whole people ; not by the rich or the poor, the learned or the 
 ignorant ; that all men, as men, have rights to be protected 
 other than the rights of property or education, just pride to 
 be gratified, and intelligence worthy to be exercised and con- 
 sulted. Where the great body of a people are able to feel and 
 appreciate these wants, that people is fit for democracy. To 
 be governed by others implies inferiority ; and inferiority,
 
 352 THE TRIAL OF THE CONSTITUTION. 
 
 where it exists, must be and ought to be so governed. All 
 men have equal rights to justice, but even-handed justice will 
 not bestow upon all men equal power, because those who 
 cannot use it discreetly Avill abuse it to the injury of others, 
 which is not justice. Intelligence only has a right to govern, 
 because intelligence only can perceive truth, and truth rules 
 by Divine right on earth and in heaven. 
 
 Find out in a State a class exclusively intelligent, and that 
 class should have exclusive power. Find out a man supremely 
 wise and good, and what can we do, as Aristotle says, but de- 
 liver ourselves up to him as his subjects and servants. Thence 
 hero-worship. Such instinctive reverence have we for great- 
 ness and goodness, that when we see them manifested in a 
 man, or only think we see them, we are eager to trust, honor 
 and obey him. Thence also the Grecian ostracism, explained 
 by Aristotle on the same principle. The best and wisest man 
 is far from supreme in wisdom or goodness, therefore not to be 
 trusted with absolute power ; but an approximation to both, 
 excites such lively admiration, as to be dangerous to liberty ; 
 and the Greeks could find nothing better to do with a great 
 man than to banish him, to prevent him from becoming a 
 tyrant. The difficulty is to find a class in which the intelli- 
 gence wortliy to govern resides. In Europe they know very 
 well in what class it does not reside, and they cling to their 
 monarchies and aristocracies. In our Southern States the 
 people know that it does not reside in the negro race, and 
 therefore they exclude it from power. But in the North, who 
 can classify the people so as to distinguish between the igno- 
 rance and poverty that ought to obey and the knowledge and 
 wealth that ought to govern ? No such classification is possi- 
 ble. As already stated, property and education are so widely 
 diffused, and every order of society participates so generally 
 in both, that no dividing line can be drawn. Poverty and 
 ignorance exist, undoubtedly, and perhaps may be considered 
 as the permanent characteristics of some small sections of the 
 people, but they are so small, that they may easily be con- 
 trolled by the predominant intelligence of the rest, without in- 
 vidious and dangerous distinctions, if the proper machinery,
 
 BEMOCRACY. 353 
 
 the electoral methods, were provided to represent an.d execute 
 the intelligent will of the community. 
 
 Nominating conventions have already been discussed as one 
 of those methods, which have been grossly abused, indeed, in 
 practice, though they, no doubt, have been productive of much 
 good, and might be made efficient engines to place honesty 
 and ability in power. They should be so constructed as to 
 become well-chosen local committees, appointed by the people 
 to do, what they cannot do, find out who in a district are fit 
 to be trusted with official authority and to present them when 
 found to the people. 
 
 Equal and universal suffrage is another electoral method 
 employed to carry out the principles of democracy, generally 
 mistaken for democracy itself, and indeed the cause of much 
 of the dread which it inspires. Universal and equal suffrage 
 does not fairly represent society and bring into action all the 
 elements of its power. In Europe, Avhere the masses are poor 
 and ignorant, and, as a general rule, remain so from genera- 
 tion to generation, if each man had a vote the government 
 would be thrown wholly into the hands of the most numerous 
 class, and the just claims of education and property, to at least 
 equality, would be denied. But inequality, not equality, is 
 the law of nature, and differences of social position are the re- 
 sults and tokens of disparities of mind and character. Men 
 are not equivalent in value one to another, and any Govern- 
 ment which disregards natural differences and violates natural 
 laws cannot succeed. It is manifestly absurd to give equal 
 influence in public affairs to ignorance and knowledge, to vice 
 and virtue, to pauperism and wealth, and a government that 
 did so would be founded, not on truth, but on falsehood. 
 
 Universal suffrage, moreover, throws all power into the 
 hands of a majority, or wdiat, from the returns of an election, 
 may appear to be a majority. The rights of a minority, how- 
 ever large, are disregarded, and for this reason the tyranny 
 of a majority is justly dreaded as the vice of democracy. 
 Where parties are nearly equal, a very small number holds 
 the balance of power, and may decide questions of deep im- 
 
 23
 
 354 THE TRIAL OF THE CONSTITUTION. 
 
 portancc ; and that small number may be gained by terror or 
 fraud, or may be apparent only because of false returns, or 
 opinions may be imputed to a real majority which only a small 
 portion of it entertain, all which have happened repeatedly in 
 our practice. It is no reply to this to say that a defeated 
 party can wait till the next election and will then have a 
 chance to win the people to its side. In the interval injury 
 irreparable may be done, and even the Government itself be 
 attacked by rebellion, as our recent experience proves. The 
 absolute, unchecked sway of a mere majority violates the prin- 
 ciple of equal rights, which is the true principle of democracy. 
 It is not the Government of the whole but of a part, for the 
 voice of a part in the public councils is silenced for a time at 
 least, and it may be at a critical period, big with the destiny 
 of the nation. 
 
 These and other defects of universal and equal suffrage, as 
 a means of expressing and carrying out the real opinions of 
 the people with fairness to all interests and classes, have been 
 pointed out in recent English writings on political science, 
 more especially by Mr. John Stuart Mill, in his very able 
 work on Representative Government. Various remedies have 
 been suggested by which the dreaded dangers of approaching 
 democracy in England may be averted, the consideration of 
 which would be beyond the scope of this essay. Thinkers and 
 scholars are, in that country, engaged earnestly in discovering 
 and explaining the true principles of free government, so that 
 inevitable changes may be gradual and the destructive shock 
 of revolution be avoided. 
 
 Our Constitution fortunately presents no obstacle to im- 
 provements suggested by thought or experience, in reference 
 to suffrage. The evils of the past prove that some alterations 
 are necessary to enable the people really to govern. This war 
 is ac. effort on the part of the people to make themselves heard 
 and obeyed. It would never have happened had their Avishes
 
 DEMOCRACY. 355 
 
 been represented by tbe Government. They have risen in 
 their might, and broken through party ties to shake off the 
 abominable rule of demagogueism. The spirit and intelligence, 
 the noble enthusiasm they have displayed, prove that power is 
 safely lodged in their hands if they could find out how to apply 
 it. But neither the power of the people nor of steam can be 
 made available without an engine to regulate and direct it. 
 We have invented admirable machines for steam power, but 
 those yet contrived for popular power have been found worth- 
 less. They will not work, nay, they explode, scattering around 
 them wounds and death. The difiiculty is to get a machine 
 that will do its work. Furnish one to the people, and they 
 will be able to use it, but they cannot make one. Inventors 
 are rare. Workmen who can manage the steam-engine, the 
 telegraph, the cotton gin, the printing press are plenty enough, 
 but these wonderful instruments were each the happy thought 
 of a gifted mind, such as nature does not produce in crowds. 
 The machine called a government, is a higher product of human 
 wit than any of these. So high and difficult a work is it in- 
 deed, that not one man or set of men, however wise, but gene- 
 rations of the wisest are necessary to perfect it, by minute 
 alterations and improvements, through ages of constant effort. 
 Our fathers inherited the English Constitution, long tried and 
 gradually perfected by thoughtful toil. With reverent care 
 they preserved what they could of it. With anxious delibera- 
 tion they altered it, and added to it, according to the impera- 
 tive demands of new circumstances. But those sages were not 
 infallible, nor did they pretend to be. They did not make 
 their work a fetter upon the intellect of the future ; on the 
 contrary, they left it elastic, pliable, and open to amendments 
 suggested by new wants and advancing knowledge. The press- 
 ing want now is, some electoral method to render universal 
 suffrage consistent with equal rights, and to express the will 
 and moral convictions of the people. The people cannot act 
 directly. They must of necessity act indirectly. To supply 
 this necessity nominating conventions have been adopted. But 
 who is to nominate, who does nominate the members of these
 
 350 Tin: TRIAL OF THE CONSTITUTION. 
 
 conventions ? Somebody must, for the people cannot. They, 
 indeed, can scarcely be said to elect them. They are nomi- 
 nated bv party leaders, who become leaders nobody knoAvs how, 
 and who have neither legal duties nor responsibilities. Either 
 the Avhole system must be abolished or it must be reformed, 
 so that capacity and integrity may preside over these conven- 
 tions. The law cannot say who shall be members of them, but 
 it may say who shall not be. It may require some qualifica- 
 tions that would be a guarantee of character, and prevent the 
 disgraceful spectacle of members begging and receiving offices 
 from their own nominees. The electoral colleges provided in 
 the Constitution for the choice of a President aiford suggestions, 
 bv which the conventions might be moulded into fit machines 
 for drawing forth the intelligence and carrying into effect the 
 wishes of the people. Ample power over the subject is conferred 
 on Congress, by Section 4, Article 1, of the Constitution. 
 
 This war is a test of the Constitution, and will hardly pass 
 away Avithout introducing changes in our Government. Great 
 moral forces have been stimulated to violent action, free scope 
 has been given to the pent up, but long-brewing elements of 
 strife, and when the wild uproar has subsided, we can scarcely 
 expect the regular and normal movement of our system to be 
 resinned. The restoration of the Union is still doubtful, not- 
 withstanding the victorious progress of the Northern arms.* 
 Our generals wherever they go proclaim peace, protection and 
 friendship to the Southern people, and offer them their former 
 p(»sition under the old flag. They are received with every 
 manifestation of bitter hatred ; the very women revile and spit 
 u|)on them as they pass. Demonstrations of loyal sentiments 
 liave been as yet feeble and few. No doubt the opinions of 
 many are repressed by the reign of terror established by the 
 rebel government, and will become manifest when its power is 
 
 * May 31.
 
 DEMOCRACY. 357 
 
 destroyed. Probably also the hopelessness of their cause and 
 the obvious benefits of the Union, may bring back to it the re- 
 luctant oligarchy. But slavery Avill remain, unless destro^^ed 
 by the war, and with it the spirit of caste and sectional inte- 
 rests. Is union possible with a people thus alienated and 
 hostile? If with sullen reluctance they yield to necessity and 
 return, will they not for many years be dangerous in peace, 
 and more dangerous in war ? Would they not bring back 
 with them all the old feuds and hates, would they not sympa- 
 thize with an enemy and welcome a foreign invader ? Can 
 we conquer them and hold them in subjection by military force ? 
 Would that be justice, would it be a real Union, would it not 
 alter the character of our Government, and end in the over- 
 throw of republican institutions ? But shall we let them erect 
 an independent nation in the South, and thus rob us of our 
 Southern territory, with its coasts and ports and cotton and 
 the Mississippi, and establish on our border an unfriendly 
 power, ready at any moment to become formidable by European 
 alliances ? And what shall we do Avith slavery ? Can we re- 
 tain and protect it, in the Union, as before ? Would it not 
 again become a source of discord, an element of party power, 
 and cause new rebellions and wars ? Will it not do this either 
 in or out of the Union ? Should the present contest end in 
 separation, where can the line be drawn ? If slavery be in- 
 cluded in the Northern section, then slavery would always be 
 an element of danger, for it would always be really the ally, 
 as it now is in the Border States, of our Southern enemies. If 
 the line be drawn north of slavery, then the Southern Con- 
 federacy would become a formidable rival to the Northern. Is 
 it possible immediately to abolish slavery consistently with 
 justice and humanity, or at all ? Is it possible to retain it, 
 and at the same time satisfy Southern demands and Nortliern 
 opinion ? These and other problems the swift hours are bring- 
 ing to test our prudence and firmness and wisdom. They are 
 more difficult to dispose of than the war. They imply another 
 question graver than any, — has the power to cope with such 
 difficulties been provided in the Constitution ? Can they be
 
 353 THE TRIAL OF THE COXSTITUTIOX. 
 
 dealt witli 1)V universal suffrage, nominating conventions and 
 quadrennial Presidents? These have guided us into our 
 troubles ; Avill they guide us out of them ? 
 
 It cannot be denied that the future is clouded by doubt. 
 "We have been for many years sowing the wind, and are now 
 reaping the whirlwind. Not Avith impunity does a people 
 hasten to be rich, and foolishly, Midas-like, pray that every- 
 thing it touches may be turned into gold. On truth, justice 
 and knowledge, not on cotton, corn and negroes, must the 
 greatness and glory of a nation be founded. Spiritual causes 
 work in silence and in secret, until at length they reveal 
 themselves in startling and inexorable facts. " The feet of 
 the avenging deities are shod with wool." We have filled our 
 barns with plenty, and said, " Let us take our ease, eat, drink, 
 and be merry ;" when suddenly, a voice from heaven has cried, 
 " Thou fool, this night thy soul shall be demanded of thee ; 
 then whose shall those things be which thou hast provided?" 
 Whose indeed ! Shall they belong to a nation once known as 
 the United States, or be partitioned among several nations, or 
 shall they become the prey of a foreign spoiler ? " The mills 
 of God grind slowly, but they grind to powder." 
 
 The punishment, as yet, has chiefly fallen where it was 
 most merited, on the arrogant, overbearing, selfish, sordid and 
 sectional South, slave-trading, slave-breeding, and worshippers 
 of slavery and cotton. But many a Northern home has been 
 clouded by grief, and a heavy load of taxation and debt has 
 been imposed on the Northern people. As a compensation, 
 however, their intelligence and force of character have been 
 developed, their finest emotions have been touched, and they 
 have shown that amid their busy industry, the divine fire of 
 feelino; and enthusiasm has not been extiniifuishcd in their 
 
 O CD 
 
 hearts. The Northern people now know themselves better 
 than they ever did before, their capacity, their strength and 
 courage. They know that they can trust each other. They
 
 DEMOCRACY. 359 
 
 know that they have a nation to preserve, and they are de- 
 termined to preserve it if they can. 
 
 It ■will not be an easy task, and he is a bold man that 
 ventures to predict that it Avill be accomplished. Our courage 
 is screwed to the sticking-point, yet we may fail, and fail too 
 in spite of victories on fields of battle. It needs no prophetic 
 inspiration, however, to feel sure that this Northern people will, 
 in the Union or out of it, continue to advance in wealth and 
 power, in science and the arts of peace and war ; that they 
 will till, cultivate and adorn the vast and fertile regions they 
 possess, and cover them with the works of aspiring civilization ; 
 that they will continue to be a free people, and under all 
 changes of form, preserve the scope, the spirit and the action 
 of Republican Government. They cannot do otherwise. 
 These thing-s are the outsi-rowths of their race, run in their 
 blood, beat in their hearts, and form the texture of their 
 thoughts. Our Constitution did not give us liberty, but the 
 spirit of liberty, the Constitution. Freedom of speech, free- 
 dom of the press, freedom of worship, security of person and 
 property are in it, and as defences of these, trial by jury, the 
 writ of Habeas Corpus and representative Government. 
 These were put into the Constitution, because they were al- 
 ready in the minds and hearts of those who made it. They 
 have remained in the Constitution, because they have been 
 cherished in the minds and hearts of those who have lived 
 under it. Abolish the Constitution to-morrow and these 
 principles would create another like it, if they remained in 
 the thoughts of the people. Change the sentiments and 
 character of the people, convert them into French Celts or 
 Irish Celts or Russians or Sclavonians, and the Constitution 
 Avould become a dead letter, without force or meaning. 
 Forms are useful only as manifestations and instruments of 
 the informing spirit. When that spirit dies, forms become 
 the rubbish of the past. Among a progressive people, old 
 ideas like old men, are always passing away, and new ideas 
 rising with new generations. Thus all things change, but 
 always we have both the old and the new, sober age clinging
 
 360 THE TRIAL OF THE CONSTITUTION. 
 
 to the past and restraining rash ^^outh, too eagerly rusliing on 
 the future. So should it be in Government. New forms are 
 not easily invented, even when necessary, to serve a growing 
 and advancing people. We should therefore retain the old 
 that have been tested by experience, as long as we can, 
 modify them with caution to suit new conditions, and in inte- 
 rests so momentous as those that depend on the organic laws 
 of Government, "Prove all things; hold fast to that which is 
 good."
 
 APPENDIX. 
 
 Note to Page 284. 
 
 THE PRESIDENT'S PROCLAMATION OF SEPTEMBER 22, 
 
 1862. 
 
 The Proclamation issued by the President, September 22d, 1862, 
 is the most memorable, and may prove the most important event of 
 the war. It draws a clear line between the past and the present, and 
 marks the progress of opinion. When the war began, slaves escaping 
 to our lines were returned to their masters. Afterwards, with hesita- 
 tion, they were received and employed as laborers, but our Generals 
 who proposed to invite them to escape, or to arm them as soldiers in 
 our cause, were disavowed and rebuked. This forbearance, however, 
 produced no effect on the Southern people. Their vindictive hatred 
 increased, and the rebellion waxed in strength. With it grew the 
 determination of the North. At last, slowly, very slowly, men began 
 to say : " Slavery was the cause of the war ; why should we protect 
 slavery ? It gives strength to the rebels, who are endeavoring to 
 destroy our country, who have filled our homes with mourning, and 
 imposed on us a heavy burden of debt and losses; who have not 
 hesitated to lay their hands on any Northern property they could find, 
 to inflict on us every injury in their power. What is there in sla- 
 very so sacred or so beautiful, that it should be exempt from the laws 
 or the fortunes of war ? Slavery is protected by the Constitution 
 indeed, but men who have cast off the Constitution, who defy it, who 
 seek its overthrow, cannot surely claim its protection. The Southern 
 people have attacked our Government. We are waging against
 
 362 APPENDIX. 
 
 them a just and necessary war, the object of which is, by means of 
 the destruction and suffering it causes, to conquer such a peace as 
 may restore and secure our rights. Why then should we not avail 
 ourselves of every means permitted by the laws of war, to weaken our 
 enemies ? Should slavery perish in the conflict, the world will not 
 mourn its loss, and the Southern people will have brought it on them- 
 selves." 
 
 Gradually and with diSiculty, the events of the war have brought 
 Northern sentiment to this point. So kind were the feelings of the 
 people towards the South, so profound their reverence for the Consti- 
 tution, and so deeply rooted the idea, that as by it slavery was guaran- 
 teed, it should therefore be preserved. These opinions have been 
 changed, and this Proclamation is the result. The President himself 
 has been the subject of a similar change, as his whole course abun- 
 dantly proves. A year ago, six months ago, he could not have pro- 
 posed such a measure, and had he done so, it would have been re- 
 ceived with general alarm and disapprobation. Now it seems to most 
 men a natural and inevitable result of what has gone before. 
 
 It is, indeed, a very grave and serious matter, and so is the war, 
 and so will be its consequences. We must prepare our minds to wit- 
 ness great events and great changes, for immense forces of a charac- 
 ter to cause both have been set in motion. We should try to enlarge 
 our vision so as to see the real dimensions of the things that surround 
 us, which dwarf all our past experience. Attorney logic and Court- 
 house law do not suit the times we live in. 
 
 A President of the United States has issued a decree, that all the 
 slaves in any State in rebellion to the Government on the first day of 
 January next, shall be "thenceforth and forever free," and that 
 the Executive will do no act to suppress " any efi"orts they may make 
 for their actual freedom." Did any gifted seer behold this handwrit- 
 ing on the wall, when Northern and Southern Democrats combined 
 their forces to impose the Lecompton Constitution on the people of 
 Kansas ? 
 
 The remarks in the text on emancipation as a war measure, to
 
 APPENDIX. 363 
 
 which this note refers, were written in May last. It must be evident 
 to every reader, that the argument there used does not apply now, so 
 greatly has the position of affairs changed in the interval. Then, we 
 were in a tide of victory. Since, we have suffered defeat. Washington 
 has been seriously endangered, the Northern States invaded. The 
 strength displayed by the South has been so great, that self-defence 
 urges us to adopt measures, which before were considered unneces- 
 sary. Six months ago we still clung to the hope that a Union party 
 existed in the South, and therefore that this war was really waged as 
 at first intended, not against the people, but against a usurping fac- 
 tion, so that any measures destructive to the interests, or injurious to 
 the feelings of the whole people, would have been at once unjust and 
 impolitic. Now it appears that all classes in the South are zealous 
 and united in supporting the rebellion. The war, therefore, has 
 changed its aspect. It is no longer a contest between a rightful Go- 
 vernment and a rebellious conspiracy, but has become necessarily in 
 some respects, a foreign war between two contiguous nations. The 
 management of the war must therefore change. We are entitled to 
 all the rights of belligerents, else our hands are tied, whilst those of 
 the enemy are free. The Southern people treat it as a foreign 
 war. They have declared their independence, they have formed 
 a government, they are seeking foreign alliances, they claim to be a 
 nation ; if they succeed, they will be a nation. Surely, therefore, 
 they cannot complain if we treat them according to the position which 
 they themselves assume, and employ against them every means justi- 
 fied by the laws of nations. 
 
 That these laws authorize the Proclamation, there can be no doubt. 
 If we have a right to wage the war at all, we have a right to do any- 
 thing, not contrary to the usages of civilization, to weaken the enemy ; 
 to seize property, public and private, to ravage and destroy towns and 
 districts, provided always that such extreme measures be really neces- 
 sary, and not executed in wanton cruelty or revenge.* War is a 
 stern and terrible remedy. It operates by means of destruction; 
 
 * Vattel's Law of Nations, chaps, viii and ix.
 
 3G4 APPENDIX. 
 
 destruction of life,, of wealtli, of human happiness. The moral re- 
 sponsibility for the suffering it creates, is upon those who unjustly 
 wage it, and the burden is heavy. 
 
 If the negroes are to be regarded as property used by the enemy 
 in their military operations, property which gives them strength to 
 carry on the war, no argument is necessary to prove that we have a 
 right to seize and appropriate it to our own use, as much as if it con- 
 sisted of artillery or ammunition. If the negroes are to be considered 
 as men, as inhabitants of the country invaded, favorable to our cause, 
 and willing to assist us, there can be as little doubt that we may 
 invite their assistance, and reward them for it by pay and by freedom. 
 Indeed, it would be monstrous to accept their services, and then 
 return them to slavery. It would be folly not to accept their services, 
 not to obtain their aid, by every inducement we can offer. Hitherto 
 we have abstained from this, and why ? Because we desired to pro- 
 tect slavery, which has, in fact, been living under our protection ever 
 since the war began. We wished to protect it, because we thought 
 we were making war on a conspiracy, and not upon a people ; because 
 we hoped to bring back that people to the Union, with all their rights, 
 and with as little injury to their interests as possible. But the whole 
 people have been swept into the ranks of the rebellion, and have 
 forced us to make a foreign war. Nay, they have proved strong 
 enough to invade us, to plunder our farms and villages. Are we not, 
 therefore, entitled to all the rights of belligerents ? Shall we fight 
 with foils, whilst they use sharpened swords ? Negroes form the 
 strength of the rebellion. They do much of the hard work and 
 drudgery of war. By their labors on farms and plantations, they 
 enable the South to send its whole white population to the field. 
 The negroes arc our friends, would gladly be our allies. They think 
 that we come as their friends, their liberators. Their masters have 
 told them so, though hitherto we have not. On the contrary, we 
 have told them that they had no interest in this war. "Not for your 
 sakes is it waged," we said to them, "but for our own, and however 
 it may terminate, you are to be slaves as before."
 
 APPENDIX. 365 
 
 The Southern people have driven us out of this position. It has 
 become absurd and ridiculous. Not until it became so, did we aban- 
 don '\t^, and then with reluctance. The Southern people cannot ex- 
 pect us to treat them, at the same time, as friends and as enemies, as 
 fellow-citizens and as aliens. They have assumed the character of 
 aliens and of enemies, and must accept all its consequences. They 
 have confiscated every dollar of Northern property they could find. 
 Why should not we do the same thing with Southern property, more 
 especially if it be contraband of war? We are sending to the field 
 thousands of the best and noblest of our youth. Why should we not 
 employ, at least in the labors of the camp, those inhabitants of the 
 South who are willing to serve us ? Did there exist in the North, a 
 class of men who sympathized with the rebellion, who were hostile to 
 the Government, and ready to rise in arms to join the ranks of an 
 invading army, would the rebels hesitate about appealing to them and 
 asking their aid ? Have they not used Indians in this war ? Are 
 they not endeavoring to gain the assistance of France and England ? 
 If we wish to succeed we must use the negroes. Our fathers did so 
 in the War of Independence. The State of New York, in 1781, gave 
 freedom to all slaves who should serve in the American army; and, 
 in 1786, passed an act by which all slaves were set free who had 
 become public property by attainder, or the confiscation of their mas- 
 ter's estates.* 
 
 All the negroes we employ, we must, of course, set free. If we 
 wish to obtain their services, we must tell them they will be free, that 
 they are free in the eye of this Government, which will no longer re- 
 cognize their slavery or use any means to enforce it, provided their, 
 services shall be required. This is what the President says, and fur- 
 ther than this, as commander of the army and navy, he could not go. 
 Even in going thus far, he does not depart from the original design 
 and plan of the war. He does not treat the South as a foreign nation 
 except in a military sense. He offers peace ; he offers restitution of 
 
 * 2 Kent's Commentaries, 206.
 
 366 APPENDIX. 
 
 all riirlits. "Come back," ho says, "to the Union, and take your 
 former place in it, with all its privileges and powers, even the power 
 of a"-ain governing us, if you can. Send your representatives to 
 Con""ress. If you do that before the first of January, this edict will 
 be of no effect." 
 
 "When the President declared that after the first of January the 
 slaves in States who had not then sent representatives to Congress 
 should be free, he at the same time declared impliedly that he would 
 do nothing to keep them in slavery. He has thought fit to say so ex- 
 pressly, probably because, on a former occasion, he avowed his deter- 
 mination to put down any attempt at insurrection. After the first of 
 January he will leave that task to the Southern people. Willingly 
 he will leave it to them, together with the task of resisting our armies; 
 and if they should find the former the more difficult business of the 
 two, so much the better for us. The President has been charged 
 with an attempt to' excite a servile insurrection by this part of the 
 Proclamation. The Southern people are of course indignant at it, 
 and the Northern party, who favor the South, are equally indignant. 
 
 The policy executed by the Proclamation has indeed been very 
 generally opposed by the generous and humane sentiment of the 
 Northern people, because they feared it might spread throughout the 
 South the horrors of a servile war. The sentiment is a just one. 
 We do not war on women and children, on the weak and defenceless. 
 The massacres of St. Domingo are yet fresh in the world's memory. 
 We have no wish to see them repeated at the South, and to let loose 
 upon gentleness, beauty, innocence and refinement, the untamed, 
 brute ferocity of barbarians. 
 
 Is such the design of the President ? He does not say so. His 
 whole previous conduct proves the contrary. Slavery is, at the same 
 time, a source of weakness and of strength ; of weakness, because in 
 war there is always danger of insurrection ; of strength, because so 
 long as the negroes are obedient, they may be employed both in peace- 
 ful and warlike labors. We have suffered from the vigor and eflS- 
 cicncy which slavery has imparted to the Southern armies. Confi-
 
 APPENDIX. 367 
 
 dent in our superior power, hoping always for a display of loyal feeling 
 among the Southern people, we have been content to suflFer, rather 
 than run the risk of causing a desolation, greater even than that of 
 war, among our countrymen and brothers. 
 
 But events have changed our position in relation to this as to other 
 points already mentioned. We find it no easy task to conquer the 
 rebellion, now that it is sustained by the whole Southern population, 
 white and black. When Mr. Lincoln undertook it, he called for 
 seventy-five thousand men. He has now nearly a million, yet he has 
 been scarcely able to defend Washington, and not able to defend the 
 Northern States from predatory invasion. So much power has the 
 South, derived chiefly from slavery, that it has become evident that 
 unless we can speedily put an end to the war, we may have a foreign 
 war also on our hands ; for the nations of Europe, demanding cotton, 
 demanding the restoration of commerce to its old channels, cannot be 
 expected to wait forever on our tardy operations. What then shall 
 we do ? Suffer ourselves to be conquered by slavery in war as before 
 we were in peace ? Or having felt the strength of slavery, shall we 
 make the South feel its weakness ? By means of the strength im- 
 parted by slavery, the South wins battles and protracts the war. 
 Clearly, then, we are justified in destroying slavery, if we can, as a 
 mere military measure, as much as we are in destroying forts and 
 navy yards. 
 
 This is what Mr. Lincoln proposes to do. He has declared that 
 after the first of January he will recognize no such thing as slavery 
 in the rebellious South ; that if the slaves rise to assert their freedom 
 he will not help to put them down. Why should he ? The laws of 
 war do not require it of him ; no principles upon which it is possible 
 to conduct war require it. He does not say he will send emissaries 
 among the negroes to instigate- them to revolt ; that he will arm them 
 for the work of lawless havoc ; that he will stir them up to massacre 
 and plunder. But he does say to the Southern people: "These 
 negroes have been heretofore to you a source of strength by reason of 
 my forbearance. Naturally they are a source of weakness. I give
 
 368 APPENDIX. 
 
 3-0U notice that henceforward I will treat them not as slaves, but as 
 freemen. That wherever I can, I will set them free and employ them 
 for my purposes, as you have employed them for yours. If they at- 
 tempt to gain .their liberty, I shall not interfere to prevent it. That 
 is your business, not mine. If you dread them, call home your 
 armies from Tennessee and the Potomac to guard them. Your troops 
 will be euiployed in such duty, more to my satisfaction, than they 
 have been in threatening AVashington or invading Pennsylvania." 
 
 But the tendency of such a Proclamation, it may be said, is to ex- 
 cite insurrection. Of course it is, and so is the tendency of the war. 
 No State founded on slavery can engage in war without the risk of a 
 servile revolt. That is one of the evils of slavery. But does it follow 
 from this, that when such a State is at war, its enemy is obliged to 
 keep its slaves in subjection 1 On the contrary, may not that enemy 
 justifiably proclaim liberty to the slaves, and leave to their masters 
 the task of holding them in bondage, for the very reason that this 
 duty will embarrass the military operations of those masters, diminish 
 their forces, fill them with terror and thus expose them to defeat ? 
 And .should an insurrection ensue, who is responsible? Surely not 
 the military chief who issued the Proclamation according to the laws 
 of war, any more than he is responsible for the misery and death to 
 the innocent, cau.sed by the falling of bombshells into a city that re- 
 fuses to surrender. His duty is to take the city. The duty of the 
 other side is to defend it or to give it up. One of two things the 
 Southern people must do hereafter. Put an end to the war by sub- 
 mission to their lawful Government, or themselves keep their negroes 
 in subjection. These, heretofore, have shown no disposition to revolt. 
 The whole South is armed and vigilant. A general insurrection is 
 almost impossible. The negroes are ignorant, unarmed, incapable of 
 combination, accustomed to obey and closely watched. The slightest 
 manifestation of a disposition to rise, would be punished with terrible 
 severity. Mr. Lincoln's Proclamation is far more dangerous, in this 
 point of view, to the blacks than to the whites. It is not likely to 
 cause an insurrection, but it may excite the dread of one, and thus
 
 APPENDIX. 369 
 
 weaken the military power of the South. It is a military measure 
 intended to produce that effect. It is a military measure put off as 
 long as possible, in the hope that events might render it unnecessary. 
 It became necessary to save us from invasion, from foreign interven- 
 tion and perhaps from foreign war. 
 
 Let it be granted, however, for the sake of argument, that the 
 danger of an insurrection, excited by this act of the President, is 
 serious, — that it is even unavoidable. It surely cannot be pretended 
 that Mr. Lincoln means or desires to cause such a result, when he 
 gives ample notice of the intended measure, and at the same time 
 opens a path by which its dreaded consequences may be avoided. 
 The shelling of a city is a terrible act of war. It necessarily involves 
 the destruction of a vast amount of property, and also of lives, which 
 even war spares if it can. The practice, therefore, of civilized war- 
 fare is, first to demand a surrender of the city, and if that be refused, 
 to give time for the removal of women and children, and other non- 
 combatants, before the dread alternative is executed. Mr. Lincoln 
 has given three months' notice of his purpose, during which the 
 Southern people can prepare themselves against a servile revolt. 
 They have prevented one so far, in the midst of a war, the object of 
 which, the negroes believe, is to set them free. It is scarcely proba- 
 ble that Mr. Lincoln's paper proclamation will have such an effect on 
 their minds that the authorities of the South, forewarned as they are, 
 cannot prevent the horrors of an insurrection. If they continue, 
 indeed, to send forward to the battle-fields of the war their whole 
 available white population, the negroes might become dangerous, 
 should Mr. Lincoln, on the first of January, tell them they are free. 
 But let Mr. Davis detail as a home-guard some of the able generals, 
 such as Lee, Joseph Johnston, Beauregard, Stonewall Jackson, and 
 others, and say two hundred thousand of the brave troops that have 
 given us so much trouble, and there could be no danger. Is it a 
 crime to force him to do this ? Or is it contrary to the laws of war ? 
 Mr. Lincoln's Proclamation has been likened to the barbarous practice 
 of poisoning wells and springs. But suppose it became necessary, in 
 
 24
 
 370 APPENDIX. 
 
 a campaign, to prevent the occupation of a particular region ■which 
 could not be defendt'd, and the general in command gave explicit and 
 ample notice to the enemy that the springs and wells were poisoned. 
 Without admitting any analogy between the cases, would not such 
 notice take away the barbarism of the act, so far as the enemy was 
 concerned? Had Mr. Lincoln intended to cause a servile insurrec- 
 tion, he would not have given three months' notice of his design. 
 That the Proclamation may, if it can be carried into effect, break up 
 the fabric of Southern society, destroy a large amount of slave pro- 
 perty, derange the industry, and inflict heavy losses on the Southern 
 people, is no doubt true. But such injuries are within the legitimate 
 scope of war. 
 
 The President has not only given ample notice of his purpose, but 
 he has ofi'cred honorable terms by which its dreaded eff'ects may be 
 avoided. He demands no mortifying submission, no payment of the 
 heavy expense of the war, no security for the future. All he asks is, 
 that they shall send representatives to Congress, whose votes may 
 perhaps control him; that they shall resume their place in that 
 Government, by whose Constitution, he himself is bound to put down 
 insurrection ; under, which Government their slaves have risen from 
 8200 to 81000 each in value; under which they enjoyed, for nearly 
 a century, peace and security, and made such progress as Africa per- 
 mitted them to make. Not very hard conditions, one would think, 
 to be off"ered to men who are attempting to overthrow a Government 
 which conferred on them so many benefits, and who have inflicted on 
 its people so many injuries. 
 
 There is another way, not suggested by the President, by which 
 the South may, now and forever, avoid all danger from insurrection, 
 and make the negroes perfectly safe, — convert them perhaps into 
 zealous co-workers in the war. The Southern people might be before- 
 hand with Mr. Lincoln, and themselves give freedom to the slaves. 
 This plan, indeed, would not please the ruling classes in the South. 
 The two billions wuuld rise up in all their majesty to forbid it. But 
 necessity is a hard master. If they have to choose between the two,
 
 APPENDIX. 371 
 
 the way proposed is better than insurrection ; it is better than to have 
 the negroes freed by Mr. Lincoln. If the destruction of slavery be 
 inevitable, and it looks so now, would it not be wise to yield to the 
 inevitable, and thus control it, by doing themselves, in their own 
 way, and with such precautions as their experience may suggest, what 
 otherwise will probably be done for them, not in their own way ? 
 
 By this course they would gain many solid advantages, whilst the 
 loss would be apparent only. The two billions are rapidly becoming 
 ideal, — melting away indeed, like a bank of snow before the glances 
 of the sun. The negroes have become already demoralized, and will 
 become still more so when the President's decree, on the first of 
 January, is fulmined over the South. It may well be doubted 
 whether they will ever again be contented in their former condition. 
 Why not make a virtue of necessity, and set them free at once? By 
 this means the South would satisfy the opinion of the age, and very 
 probably secure immediate recognition from Europe. The leaders of 
 the rebellion would indeed lose the friendship of the Democratic 
 party in the North, but the Southern people would immediately create 
 another party in their favor, as respectable, and more powerful. Such 
 an act would eifectually take the wind out of Mr. Lincoln's sails, and 
 do more to weaken his armies than he can do, either by his Proclama- 
 tion or by victory, to weaken theirs. Let the Southern people con- 
 vert the slaves into a free peasantry, or a servile caste, — let them take 
 out of their code, out of their manners, out of their hearts, the lie 
 that men are property, which is destroying them, and which dis- 
 graces our Constitution, and put in its place the radiant truth of 
 justice, and the muskets of our soldiers would drop from their hands, 
 the rifled cannon refuse to roar. That lie broke the Union. Truth 
 would make another and a better. Demagogues, democrats, traitors, 
 rebel leaders and conspirators, would be swept away by a rushing 
 tide of patriotic joy, and the people. North and South, would forget 
 the war, forget its losses, forget its tears, forget its graves,, forgive its 
 injuries, and spontaneously unite together to celebrate, with loud 
 acclaim, the birth of a new nation.
 
 372 APPENDIX. 
 
 But we are not permitted .to hope for a result so fortunate. If we 
 may judge from the temper displayed by the Southern people, they 
 will neither send representatives to Congress, nor themselves abolish 
 slavery, before the first of January. The war must therefore con- 
 tinue, and it must be carried on according to the laws of war. These 
 apply equally to civil and foreign war. They have nothing to do 
 with the wrongs or the rights involved in the contest, but regard 
 simply the fact of war. These laws, the result of the world's expe- 
 rience, are so just and true that they enforce obedience by the diffi- 
 culties that arise when they are not obeyed. The mistake we made 
 in the beginning was, a refusal to acknowledge the rebellious States 
 as belligerents, from an unfounded fear that we should thus recognize 
 their independence, or the justice of their cause. But the laws of 
 war soon forced us out of that position. We soon found that we 
 could not treat their privateers as pirates, or their captured soldiers as 
 traitors; that we could not refuse to exchange prisoners, or grant 
 parole to their officers, and receive flags of truce. " When a nation," 
 says Vattel, " becomes divided into two parties, absolutely indepen- 
 dent, and no longer acknowledging a common superior, the state is 
 dissolved, and the war betwixt the two parties in every respect is the 
 
 same with that in a public war, between two different nations 
 
 Thus there are two bodies, pretending to be absolutely independent, 
 who, having no judge, decide the quarrel by arms, like two different 
 nations. The obligation of observing the common laws of war is 
 therefore absolute, indispensable to both parties, and the same which 
 the law of nature obliges all nations to observe between state and 
 state."* 
 
 K the laws of war impose restrictions, they also confer privileges, 
 and both are necessary to attain the ends of war. We have been 
 obliged to submit to the restrictions, and now, at length, we have 
 been obliged reluctantly to claim the privileges. These privileges 
 permit us to weaken the enemy by any means not prohibited by the 
 
 * Vattel's Law of Nations, book iii, chap, xviii.
 
 APPENDIX. 373 
 
 usage of civilized States. I have endeavored to show that to confis- 
 cate slaves as property, or to obtain the services of any of the inhabi- 
 tants of an invaded country, favorable to our cause, is not a departure 
 from the rules of civilized warfare, even though such a course may 
 have a tendency to excite a servile insurrection. That the dread of 
 insurrection, if it may cause a diversion of the forces of the enemy, is 
 an additional and legitimate inducement to inspire that dread; and 
 that the incidental and possible eifect of a measure, which the enemy 
 has the means of avoiding, cannot be charged against the President 
 as its intended effect, — more especially when he gives notice before- 
 hand of his purpose. 
 
 If this reasoning be correct, the Proclamation of the President is 
 fully justified by the laws of war. Now, the laws of war are part of 
 the law of nations, and the law of nations is, like the Constitution, 
 the supreme law of the land, in this as in every civilized country.* 
 If, therefore, the Constitution authorizes war to quell a rebellion, or 
 to preserve the Union, it does not merely authorize, but commands the 
 war to be conducted according to the law of nations. The President 
 is the person appointed to conduct the war. He is the Commander- 
 in-chief of the army and navy, and has as much right to issue this 
 Proclamation, as he has to exchange prisoners, to capture a town, or 
 to bombard a fort. 
 
 But it is said the President has exceeded his Executive authority, 
 and exercised Legislative power, forbidden by the Constitution even 
 to the Legislature. He has set free, or will set free, the slaves, in 
 some of the States. This objection shows a strange confusion of 
 ideas. We have been so long accustomed to regard the South as 
 part of our country, that we cannot even think of any portion of it as 
 for a time separate. The President has not proposed, in this Procla- 
 mation, to liberate a single slave in any one of the United States. 
 Those in rebellion are not united to the others, but disunited, — cer- 
 tainly for a time, perhaps forever. We must treat them according to 
 
 * 1 Kent's Commentaries, chap. i.
 
 374 APPENDIX. 
 
 the fact. They cannot claim the privileae of being in and out of the 
 Union at the same time, or the protection of laws which they refuse 
 to obey. 
 
 The theory of the Government, indeed, is, that the Union is legally 
 unbroken, because it has not been legally dissolved ; and the Govern- 
 ment, therefore, claims the right to restore its authority over all its 
 territory. It would be a strange thing if that necessary theory could 
 be converted into the means of defeating its own objects and conse- 
 quences. The Proclamation does not affect a single State in the 
 Union. It declares, to the rebellious States, that its operations shall 
 not affect any one of them that chooses to re-enter the Union; but so 
 long as they are in fact, though not in law, out of it, — so long as they 
 make war upon it, — they are enemies, subject to the laws of war. 
 The Proclamation, therefore, is strictly a military measure, applicable 
 only to public enemies in time of war, and does not touch the ques- 
 tion of slavery under the Constitution in any State subject to its au- 
 thority and entitled to its protection. 
 
 The Proclamation may nevertheless give rise to difficult and em- 
 barrassing constitutional questions. It is strictly an Executive mea- 
 sure. But Congress may not approve it. What power has Congress 
 over it ? 
 
 Such a question cannot arise in England. The King or Queen is 
 Commander-in-chief of the army and navy. The Ministers, there- 
 fore, conduct a war as the President does with us. They are mem- 
 bers of Parliament, — are, in fact, a committee of Parliament for the 
 transaction of Executive business, and retain office only during the 
 pleasure of Parliament. The important measures of war, therefore, 
 are under the control of Parliament. 
 
 What is the power, — what, indeed, is the duty, — of the President, 
 in reference to this point ? Nobody knows. It is one of those ques- 
 tions which must arise under a written Constitution, and which time
 
 APPENDIX. 375 
 
 and events only can determine. Like Congress, the President is 
 elected by the people. He is therefore responsible, not to Congress, 
 but to the people. His salary, unlike that of an English monarch, is 
 beyond the reach of Congress. He holds office during his term, 
 whether his measures be approved by Congress or not. According 
 to some, the Executive is a co-ordinate and coequal branch of the 
 Government. It is therefore independent of the Legislature, — may 
 pursue its own separate course of action in its own sphere, without re- 
 gard to the Legislature, — may interpret the Constitution according to 
 its own convictions; so that Executive, Legislature and Judiciary 
 may pull three different ways. All are equal, and each is supreme. 
 So says Mr. Bates, the Attorney-General, and he is not alone in this 
 opinion. Even the Federalist claims it as a merit that the President 
 is independent of Congress.* 
 
 These topics have been already discussed in this volume, and I 
 refer to them here merely to show that the President's Proclamation 
 may pi'ove one of those cases which make the present war a trial of 
 the Constitution. The natural position of Executive power is that of 
 subordination to Legislative, in a representative Government. The 
 law-making is necessarily superior to the law-executing power, and 
 a Government in which each branch is coequal and co-ordinate with 
 the others is an impossible Government. In an important crisis, 
 should there be a difference of opinion, either all action must cease, 
 or the stronger must prevail, or a third power, stronger than either, 
 will come in and gain the ascendency. As the Judiciary has no 
 political power, the contest must be between the Legislature and the 
 Executive. There is only one thing which ever has or ever can give 
 to the Executive ascendency over the Legislature, and that is an 
 army. 
 
 In the struggle between Charles I and Parliament, the latter tri- 
 umphed, and the liberties of England were savedy because the King 
 could not get an army. He had his Star Chamber, he had the power 
 
 * Federalist, No. 71.
 
 376 APPENDIX. 
 
 of discretionary arrest and imprisonment, but he could not get money 
 to pay troops without the consent of Parliament. Parliament could 
 raise an army for itself, and proved, therefore, too strong for the 
 King. But that army had a General, and it soon became an instru- 
 ment in his hands. With it he turned Parliament out of doors, and 
 reigned in England, so wisely and well, that his son succeeded him 
 as quietly as Victoria succeeded William IV». But Cromwell could 
 not bequeath his genius to his son, and therefore not the command of 
 the army. The army, without a leader, could not govern ; and the 
 free spirit of the English people, which had endured Cromwell be- 
 cause of the moderation, wisdom and justice of his rule, and because 
 of the veteran bands who obeyed him, rose against the tyranny of 
 mere military Government, — the Government of soldiers without a 
 leader, or with several rival leaders. The people longed for a Parlia- 
 ment and for the old monarchy, and gladly welcomed even the profli- 
 gate and frivolous son of the perfidious and selfish King whom they 
 had dethroned and beheaded. A Parliament again sat in England, 
 and took care to deprive the King, by the Habeas Corpus Act, of a 
 formidable instrument of power, freely employed under the reign of 
 his father. But another revolution was necessary, before the triumph 
 of Parliament and of liberty was complete. Fortunately, the base 
 blood of the Stuarts remained long enough on the throne to bring 
 this revolution about. In the reign of William III, the substantial 
 power of the English Throne was transferred to a Ministry, respon- 
 sible to Parliament and virtually removable by Parliament, with 
 enough of authority left in the Crown to render it a conservative 
 element in the Government, and the permanent representative of the 
 nation. 
 
 As before stated in this work, we have no such clement or repre- 
 sentative in our system. In his authority and functions, the Presi- 
 dent resembles an English Ministry. Like thorn he represents a 
 party, but, unlike thcni, when his party goes out of power he does 
 not. He remains, the representative of a minority in Congress, of a 
 minority, or perhaps of a majority, of the people. What, then, ought
 
 APPENDIX. 377 
 
 he to do, — what can he do, — in case of a difference of opinion be- 
 tween himself and Congress, supposing him to be an honorable man, 
 and influenced by pure and noble motives ? He cannot well resign, 
 as an English Ministry does in a similar case. That is not the inten- 
 tion of the Constitution, which he is bound to obey. One of two 
 courses only is left to him. He must either abandon his own convic- 
 tions, and the principles of the party who trusted him, and become 
 the mere instrument of Congress to carry out measures which violate 
 alike his own opinions and the opinions of his party, or he must resist 
 the Legislature, and exert what power he possesses to oppose and de- 
 feat its will. 
 
 This is a false position. It is a dangerous and tempting one to an 
 ambitious man ; it is trying and painful to an honest man. It is the 
 result of the fatal error of attempting to make things equal which, by 
 nature, are unequal. So long as the Legislature keeps strictly within 
 its sphere of making laws, the duty of the President is clear enough. 
 He can veto a bill that he does not approve. If it be passed by the 
 constitutional majority over his veto, his responsibility ends, because 
 his power ends. But in his own Executive sphere he still has power, 
 whatever may be the opinions and wishes either of the Legislature or 
 of the people, and with that power is inseparably coupled duty and re- 
 sponsibility. Now, what is the power of Congress over the Executive 
 sphere of the President ? Of course Congress cannot perform Execu- 
 tive duties ; but can it, like an Engli^i Parliament, direct the Presi- 
 dent how he shall perform them ? If it cannot, then a case may 
 arise when the liberties of this nation will depend on the personal 
 character of the President. 
 
 Perhaps the case has already arisen. This war has already shown 
 the absurdity of a Government of limited powers. It has shown that 
 the power of every Government is and umst be unlimited, for reasons 
 already explained in this volume. But the word "Government" does 
 not mean one branch of it; it means the Legislature and the Execu- 
 tive, — the latter acting in subordination to the former. Equality is 
 out of the question. One of the two must be supreme. The supre-
 
 378 APPENDIX. 
 
 ruacy of the Legislature means liberty, because the Legislature repre- 
 sents the whole people, receives constantly renewed expressions of 
 their will, and is open to debate. The supremacy of the Executive 
 means despotism, because it represents a party, — because its delibera- 
 tions are secret, — because it acts with the vigor of unity. But iu a 
 free Government it is impossible for the Executive to become su- 
 preme, unless it be invested with power above the law over indi- 
 viduals, and also with physical force, — with military power. Let us 
 see what the war has already done for us in this respect. 
 
 Next to an army, there is no more efficient engine of tyranny than 
 the power of arbitrary imprisonment, — of silencing the tongue and 
 the pen of the earnest, the bold, and the patriotic, by suddenly and 
 secretly, without a hearing and without appeal, sending them where 
 they cannot be heard, — where they cannot speak the truth to the 
 people, and expose the iniquities of authority. This dangerous power, 
 which an English Parliament wrested from the grasp of their Kings, 
 an American Congress, or, as some say, the American Constitution, 
 has conferred upon the President. 
 
 The right to personal liberty, like every other right, must give way 
 to the public safety. The object of Government is to protect rights; 
 rights, therefore, cannot be permitted to overthrow the Government. 
 The summary arrest and imprisonment, when the nation or its insti- 
 tutions are attacked, of persons guilty or suspected of seditious prac- 
 tices or designs, without the delay and publicity of legal proceedings, 
 may become absolutely necessary or highly expedient. Every Go- 
 vernment must possess this power to protect itself. An arrest is an 
 E.xecutive act; and as the plea of necessity frequently has been and 
 always may be used to cover ambitious and tyrannical designs, the 
 English Parliament, after a long struggle, secured to itself the power 
 of judging when the public safety requires a suspension of personal 
 liberty. To decide upon that is a Legislative act, as much as it is to 
 decide when it is necessary to raise an army to defend the public 
 safety. Both these questions are therefore under the control of Par- 
 liament, whose action is necessary to organize and support the army,
 
 APPENDIX. 379 
 
 and to suspend the privileges of the writ of Habeas Corpus. Should 
 sudden danger arise during the recess of Parliament, the Ministry 
 exercise all its power, as of necessity they must, for they are the only 
 branch of the Government capable of acting. What they do, how- 
 ever, is subject to the judgment of Parliament, and when approved 
 becomes virtually its decision. Should a summary arrest be neces- 
 sary during the absence of Parliament, or even whilst it is in session, 
 if publicity would prevent the arrest, the Minister does not hesitate to 
 make it; but he immediately applies to Parliament for a bill to ratify 
 his conduct, and also, should the danger continue, for a suspension of 
 the Habeas Corpus Act. It is then for the Legislature to judge of 
 the necessity for such a measure, and to impose such restrictions as to 
 time and place, and modes of procedure, as it may deem necessary. 
 In England, therefore, even in the midst of rebellion or invasion, per- 
 sonal liberty is under the care of the representatives of the people. 
 No man can be imprisoned, without a hearing and a trial, but by 
 their consent; and what, in certain junctures, maybe more important, 
 no one of those representatives can be imprisoned by any authority 
 known to the law, without the consent of a majority of them, which 
 was far from being the case before the revolution that secured Eng- 
 lish liberty from the grasp of Executive power. 
 
 When the rebellion broke out, the President, during the recess of 
 Congress, caused several persons to be arrested and imprisoned, who 
 were suspected of treasonable designs, just as an English minister 
 does on similar occasions. According to the English practice, also, 
 as soon as Congress met, the President told them what he had done, 
 and asked them to ratify his acts. But Congress was silent. It 
 passed no bill either to approve or to censure the act of the President. 
 Two things are necessarily implied in the silence of Congress. First, 
 approbation of his conduct, for if they did not approve, it was their 
 duty to censure it, to protest against it. Secondly, want of power over 
 the subject, for if they had the power it was their duty to exercise it. 
 
 I have already discussed this point in the Third Chapter, and refer 
 to it again in order to show that Congress, whether constitutionally
 
 880 APPENDIX. 
 
 or not, is not now the question, has conferred upon the President the 
 power of discretionary imprisonment, and withdrawn from personal 
 liberty, for an indefinite period and over the whole country, the guards 
 provided for it by law. That this was necessary, that the rectitude 
 of Mr. Lincoln renders it safe, do not alter the nature of the fact, 
 which concerns the futm-e as well as the present, that at the first 
 serious trial of our Constitution, and in the first month of that trial, 
 no man could tell what protection the law afforded to personal liberty, 
 and that now, eighteen months after that trial began, the question is 
 as doubtful as ever. The law was unsettled, and Congress refused to 
 settle it, though requested to do so by the President. He has, there- 
 fore, rightly continued to exercise the power, but whether by virtue 
 of the implied consent of Congress or because of his exclusive right, 
 no one knows. Arrests are made every day, and forts are filled with 
 state prisoners. The people are satisfied, because they comprehend 
 the necessity of the case, because they have confidence in Mr. Lincoln, 
 and because, notwithstanding some cases of hardship, unavoidable per- 
 haps, the power has been exercised with moderation and justice, 
 and without the slightest taint of personal motive or partisan feeling. 
 All this is true, and yet it is also true, that this war, notwithstand- 
 ing the boasted freedom of our Constitution and because of its prin- 
 ciples and structure, has conferred on the Executive branch of the 
 Government, absolute and irresponsible power over the liberty of the 
 citizen. 
 
 The war has also given to the Executive an army. The conspira- 
 tors against the Union managed their affairs with skill. They chose 
 for the execution of their plot a moment when the Government had 
 been weakened by their own leaders who were in office under it, when 
 an old President was going out and a new one coming in. Mr. 
 Lincoln, in the midst of novel circumstances, inexperienced in the 
 labors of his office, surrounded by covert enemies and a disaffected 
 people, found himself .«iuMonly, also, in the midst of civil war. Here, 
 also, he followed English precedent. He took the responsibility of 
 calling out troops, of enlarging the army and navy, trusting that Con-
 
 APPENDIX. 381 
 
 gress would sustain him and furnish the needful supplies. In this 
 case there was no doubt about the law. Congress, like Parliament, 
 alone had authority to enlist and pay an army, and was obliged to act. 
 As a majority of Congress thought it constitutional to make war to 
 sustain the authority of the Government and to preserve the Union, 
 they expressly ratified the acts of the President in this respect, and 
 gave him liberally both men and money. They thus settled the law, 
 so far as this precedent can settle it, on one importat point, — that in 
 the recess of Congress, when the public safety requires it, the Presi- 
 dent may enlist troops, as the agent of Congress, and subject to their 
 approval. Had they been equally explicit in reference to the law of 
 Habeas Corpus, much mischief would have been prevented. 
 
 The rebellion grew in strength. More and more troops were re- 
 quired until the number has swelled, it is said, to nearly a million. 
 The war has thus conferred upon the Executive an immense army. 
 The war has lasted eighteen months. The Constitution is a little 
 more than seventy years old. Already under the Constitution and 
 because of a civil war, a President of the United States finds himself 
 invested with the command of a million of armed men and with abso- 
 lute, discretionary and irresponsible power over the personal liberty of 
 every citizen, members of Congress included. It is in vain to deny 
 it. However right, however necessary this result may be, it is a 
 result, it is an accomplished flxct, and one too of no small significance. 
 
 Has it then, indeed, already come to this ? Has Democracy so 
 soon done its work and erected a military despotism on the ruins of 
 our model republic ? Not yet. Mr. Lincoln is no despot, nor has he 
 evinced any desire to become one. Neither has he the power. He 
 is, indeed, nominally in command of a large military force, but not of 
 an army, in the European sense, — of a machine, blindly obedient, 
 without thought or will of its own. He is surrounded by a number 
 of his fellow-citizens, acting for the time as soldiers, who have volun- 
 tarily come forward to help him save their country. If they sus- 
 pected him of any design against the liberties of their country, they 
 would as willingly point their guns at him as at the enemy. But
 
 382 APPENDIX. 
 
 those facts liavc nothing to do witli an argument intended to show- 
 that by virtue of the Constitution such a state of things has come to 
 pass. They prove, indeed, that under that Constitution, the liberties 
 of the people may depend on the temper of an army and on the. per- 
 sonal qualities of its chief. If the charges made against the Ad- 
 ministration by its Northern and Southern enemies were true ; if Mr. 
 Lincoln was a ftinatic and reckless partisan ; if the whole object of the 
 war was the abolition of slavery ; if the masses of the Northern people 
 were Abolitionists, and the " Yankee hordes " invading the South, no 
 better than " nigger stealers" and " iucendiarists," then, indeed, the 
 danjrer would be serious. A fanatic at the head of a million of fa- 
 natics, a John Brown leading an army of John Browns, and invested 
 with the legal power of discretionary imprisonment, would be irre- 
 sistible. So, too, there would be danger if the chief of this army was 
 a " military hero," a Caisar, a Bonaparte, or even a Jackson, A 
 Constitution should provide against dangers which, from the nature 
 of man, are likely to occur. It is intended to meet the storms of the 
 future and cannot count on always having a patriotic army and a pa- 
 triotic President. 
 
 Even these are not always a security. Oliver Cromwell was an 
 honest man. The vulgar slander that he was an impostor, a criminal 
 usurper influenced by personal ambition, has been long since disproved. 
 He was inspired by a lofty religious and political enthusiasm. Edu- 
 cated in a humble station, he joined the party who resisted a tyrant. 
 His genius soon made him conspicuous, soon placed him in command 
 of an army. That army was distinguished not merely by courage and 
 discipline, but by intelligence, by high moral tone, and by an earnest 
 and passionate devotion to an idea, a cause, unsurpassed by the 
 soldiers of the Cross in the first fervor of the Crusades or the fiery 
 horsemen of Mahomet. It is thus described by Macaulay : " The 
 ranks were composed of persons superior in education and station to 
 the multitude. These persons, sober, moral, diligent, and accustomed 
 to reflect, had been induced to take up arms, not by the pressure of 
 want, not by the love of novelty and license, not by the arts of recruit-
 
 APPENDIX. 383 
 
 ing officers, but by religious and political zeal, mingled with the desire 
 of distinction and promotion. The boast of the soldiers was, that they 
 had not been forced into the service, nor had enlisted chiefly fur the 
 sake of lucre; that they were no janizaries, but freeborn Englishmen, 
 who had of their own accord, put their lives in jeopardy for the 
 religion and liberty of England, and whose right and duty it was to 
 watch over the loclfare of the nation they had saved."* 
 
 This army had purposes of its own. It was determined to establish 
 a republic. It was determined to put to death the tyrannical and 
 perfidious king, openly, before the eyes of the world. It had been 
 the army of the Long Parliament, and none wiser or more patriotic 
 had ever sat in England, but the purposes of the army were approved 
 neither by Parliament nor by the nation. The army, however, had 
 become the master of both, and closed the doors of Parliament by 
 force. 
 
 After the death of the King, the Government was without a person 
 to represent Executive power. Naturally the place fell to Cromwell. 
 No one else could occupy it. No one else could control the army. 
 No one else could save the nation from anarchy. Authority, with all 
 its responsibilities and duties, was thus thrust upon him. He could 
 not refuse it. When he accepted it he was obliged to maintain his 
 authority. He could couimaud the army only by guiding and regu- 
 lating, not by resisting its desires. The army would not submit to 
 the dictation of Parliament, and Parliament would not submit to the 
 control of the army. Such a dispute could have but one i.ssue. 
 "Cromwell filled the house with armed men. The Speaker was 
 pulled from his chair, the mace taken from the table, the room 
 cleared and the door locked. The nation, which loved neither of 
 the contending parties, but which was forced in its own despite to 
 respect the capacity and resolution of the general, looked on with 
 patience, if not with complacency. "f 
 
 For twelve years after this, the Government of England was a mili- 
 
 * 1 Alacaulay's History of England, 112. 
 t 1 Macaulay's England, 123.
 
 384 APPENDIX. 
 
 tary despotism. But such a Government does not suit the Saxon 
 race. "Whilst the despot lived they endured it, because of the advan- 
 tages it brought. When he died they got rid of it. The proposal 
 for a free Parliament, for an omnipotent Parliament, instead of an 
 omnipotent dictator, was welcomed with universal joy. The Consti- 
 tution was in a transition state, and the stern rule of Cromwell was 
 necessary at the crisis of its fate. But for him the King would have 
 been recalled, and would have brought back his extravagant claims of 
 power, the haughty arrogance of his party, all the old issues and old 
 quarrels. The axe that severed his head from his shoulders, severed 
 also from the Government some of the false principles and abuses of 
 the past and opened the way for another revolution which was des- 
 tined to establish the Constitution on a firm and durable basis. This 
 second revolution was made, not by a military dictator, but by a free 
 Parliament, a Parliament, not of limited and enumerated powers, but 
 "omnipotent" over the nation and the Constitution, because it repre- 
 sented the people. Since that time England has been in no danger 
 of military dictation. She has had armies and wars and heroes and 
 glory, but the armies, the wars and the heroes, have been under the 
 control of ministers responsible to Parliament. No Marlborough or 
 Wellington, however much the idol of the army or of the nation, has 
 even dreamt of usurping political power, England gives to her suc- 
 cessful soldiers honors and titles, parks and palaces, but does not give 
 them crowns and sceptres. 
 
 Is our Constitution in a transition state? And must we, before it 
 can be settled, pass through the sharp ordeal of military rule ? The 
 aspect of affairs is not hopeful, not because Mr. Lincoln has control of 
 the writ of Habeas Corpus, or because he has an army, but because 
 of the fearful anarchy of opinion which rages throughout the country. 
 The natural consequence must be anarchy of action, since opinion is 
 the parent of action, and military rule is better than anarchy, — is, 
 indeed, the result of anarchy.
 
 APPENDIX. 385 
 
 Everything is unsettled. No one can tell what are the wishes of 
 the people, the purposes of parties or the probable course of opinion 
 on any one subject connected with the situation of the country. One 
 party clamors for the " Union as it was," the old Union with slavery, 
 to bring back the arrogant dictation, the monstrous claims, the corrupt 
 party alliances of the South, with the old quarrels and the old issues 
 to cause another war. What do other parties desire ? They scarcely 
 know. They say, wisely, " Let us finish the war by utterly crushing the 
 rebellion first and discuss questions relating to the Union afterwards." 
 
 But meanwhile the rebellion is not easily crushed, encouraged as it 
 is by the sympathy of its Northern friends. It hails Democratic vic- 
 tories at the Northern elections with as much delight, as it does its 
 own victories on the battle-fields of the Potomac. The former are 
 evidences of a divided North, and it knows that a divided North 
 cannot conquer a united South. The rebellion does not desire the 
 "Union as it was," or any union with the North. But if it cannot 
 obtain separation and independence, there would be some triumph in 
 capturing Washington by force of votes, if it fails to do so by force of 
 arms. Thus strengthened, however, it may be impossible either to 
 conquer the Southern people or win them back by any concessions 
 however humiliating. Should that be the result of the war, what is 
 to be done ? By what forms is separation to be accomplished ? Which 
 are the Southern States? Where is the line to be drawn, and who is 
 to draw it? Can Congress draw it and erect a great Northern con- 
 federacy? "Impossible," is the cry, "the Constitution grants to 
 Congress no such power. When the 'compact' is once broken, the 
 Union ceases to exist, Congress ceases to exist, nothing remains of 
 the nation once called the United States, and each State is at liberty 
 to form what alliances it pleases. The Northwest will of course set 
 up for itself; so will New England; the Middle States will be at- 
 tracted in different ways, as interest, geography or slavery may direct; 
 as for Pennsylvania, she will go with the South." 
 
 Such is the Babel of opinion resounding on all sides, wild, extrava- 
 gant, insane, from which no definite plan or purpose can be gathered. 
 
 25
 
 386 APPENDIX. 
 
 It seems, indeed, as if, for our presumption in attempting to raise our 
 tower of empire so high, we had been struck with confusion of 
 tongues, and had ceased to be intelligible to each other. 
 
 Is it not plain that to save us from anarchy and its consequences, 
 military despotism, a Government is necessary, a real Government, 
 not with limited powers, but with all powers adequate to the occasion ? 
 The Proclamation of the President is a military measure. As such 
 it is Executive. But does it follow that over it Congress ought to 
 have no control ? Beyond its military effects, it may have conse- 
 quences immediate and remote. It may influence slavery in the 
 Border States; it may influence the condition of the rebellious States 
 after they return to the Union, if they ever do. Congress represents 
 the interests of all. Each party has a vote in Congress, has a hear- 
 ing, has an appeal to the country. But, according to the wretched 
 dogmas of the day. Congress has no power over the Proclamation 
 because it is an Executive act, and no power over slavery because that 
 lies within the interdicted province of the Slave States. An English 
 Parliament would settle the matter very easily. It would adopt, 
 modify or annul the Proclamation, as circumstances required. It 
 would permit, restrict, alter or abolish slavery, according to the de- 
 liberate will of the nation. Should the settlement thus made prove 
 unwise or unsatisfactory, another Parliament, instructed by experience 
 and by a renewed expression of public opinion, would amend the work 
 of the former, until, by this process, that justice was at last attained 
 which satisfies all. 
 
 Parliament could do this because its authority is at the same time 
 unshackled and unquestioned. No one doubts or disputes it, no one 
 says its acts are void. Power of this sort is now demanded by our 
 situation. There is something vital to the nation to be done, — some- 
 thing that must be done to save us from anarchy, to save the Union, 
 or a Union, to preserve to us a Government and a country. But there 
 is no one to do what is necessary, no man or body of men with autho- 
 rity to grasp the vast and complicated problem presented to us and 
 solve it. This is the fatal calamity of the crisis. It is felt by every
 
 APPENDIX. 387 
 
 one, and proposals arc iiiade to call a National Convention to arrange 
 the dispute about slavery, and to do whatever the emergency may 
 demand. What is this but a confession that we have no National 
 Government? What is the object of a convention but to do some- 
 thing that Congress cannot do ? So we had a Peace Convention two 
 years ago, sitting in Washington alongside of Congress, attempting 
 to do its work, but it could not prevent war. Congress, however, 
 could have prevented war had it possessed absolute and unquestioned 
 power over the whole subject. It might not have settled the question 
 wisely or satisfactorily to all parties, but subsequent discussions about 
 it would have been had in the halls of the Legislature, not in battle- 
 fields. 
 
 And now it is proposed to choose, in the midst of civil war, by a 
 popular election, a National Convention to do the work of a National 
 Government. That Convention must be elected by the same people 
 who have already elected a Congress. It will, therefore, represent 
 the passions and opinions that divide the people and which are al- 
 ready represented in Congress. It will be governed by the same 
 leaders of parties, the same ''politicians," who already direct public 
 sentiment and control public affairs, for none others can be elected 
 because none others are known to the people. It will be wholly irre- 
 sponsible, because its members, chosen for the occasion only, will not 
 be influenced either by the hope of re-election or the fear of being 
 turned out, and the people will thus have no means or opportunity of 
 expressing their disapprobation of the conduct of the Convention. 
 There wiH be no check whatever on its action, such as Congress is 
 subjected to by its division into two houses, by the veto of the Presi- 
 dent, and by the opinion of the Judiciary. Invested thus with the 
 omnipotence of an English Parliament, but without any of its restrain- 
 ing influences, internal or external, the Convention, dressed in a brief 
 authority, might play some fantastic tricks, which, if they did not 
 make the angels weep, would more than ever divide sections and 
 parties, inflame passion and very probably produce the anarchy it was 
 intended to prevent.
 
 338 APPENDIX. 
 
 Conventions are ever prone to exceed their commission. The ex- 
 tent of power granted to them always becomes a question, which will 
 always be decided according to the most enlarged and liberal construc- 
 tion. So it was with the Convention that made the Constitution. 
 They were elected to alter and amend the Articles of the Confederation, 
 and they abolished them altogether. The origin of that Convention 
 was a meeting of eoftimissioners, who assembled at Annapolis, instructed 
 to inquire into the regulation of commerce. They said nothing about 
 commerce, but adopted a report, exhorting the States to appoint a 
 Convention to alter the Constitution. 
 
 In 1837, a Conventiun met to alter the Constitution of Pennsylvania. 
 It was elected by virtue of an act of the Legislature, which declared 
 that it should have authority " to submit amendments of the State 
 Constitution to a vote of the people for their ratification or rejection, 
 and with no other or greater poicers whatever.'^ And yet, of this re- 
 stricted body, a very influential and eminent gentleman, who has oc- 
 cupied some of the highest public stations, said, '' What may it not 
 do ? It may reorganize our entire system of social existence, termina- 
 ting and proscribing what is deemed injurious, and establishing what 
 is preferred. It might restore the institution of slavery among us, it 
 might make our penal code bloody as that of Draco; it might with- 
 draw the charters of the cities; it might supersede a standing judi- 
 ciary by a scheme of occasional arbitration and umpirage ; it might 
 prohibit particular professions and trades ; it might permanently sus- 
 pend the privilege of the writ of Habeas Corpus, and take from us the 
 trial by jury." 
 
 Mr. Dallas was right. Such are necessarily the powers of an as- 
 sembly, from which all restraint and responsibility are removed; and 
 to the guardianship of such it is now proposed to commit the country 
 and the Constitution, because unlimited power is necessary, and no 
 existing authority has unlimited and unquestioned power. This power 
 ought to be in Congress. I have endeavored to show in the course 
 of this book, that according to the true construction of the Constitu- 
 tion, it is in Congress. There only can it be safely placed, because
 
 APPENDIX. 389 
 
 there only can it be controlled. A Convention must, like Congress, 
 be governed by a majority, and that majority, in the present state of 
 opinion, is more likely to be extravagant, aggressive and tyrannical 
 than a majority of Congress, v?hilst a minority would have no protec- 
 tion whatever, either from the President or from the people, for the 
 people having given their whole power to the Convention, could not 
 withdraw it, whereas the work of Congress is never done, and the 
 people are always giving and withdrawing their power. 
 
 Should the performance of the Convention not satisfy the people, 
 what is the remedy ? Shall we call another ? Which then would be 
 the Government, Congress or these Conventions ? A Convention, un- 
 less assembled by the forms provided in the Constitution, would be a 
 body unknown to the law, and therefore without legal authority. If 
 elected according to those forms, its acts must be ratified by the people. 
 Thus there must be another resort to a popular vote, in the midst of wai', 
 with a wide field opened to agitators and demagogues to do their work 
 of iniquity. What sane man could expect a fortunate or peaceful 
 result from thus throwing our interests, our hopes and the Constitution 
 into such a boiling sea of discord ? How could the war prosper amid 
 such agitations ? Imagine a Convention now called in the South, to 
 alter the Constitution of the Southern Confederacy, Would not such 
 a measure be worth to us a dozen victories ? 
 
 However elected, the Convention would be called to do something 
 which Congress cannot do. At such a time, it would be, therefore, in 
 the nature of a provisional or revolutionary government, but different 
 from others of that kind in this, that the legal Government would be 
 still in existence and full operation. It would seem a more simple 
 way for that Government to do what is necessary, as it represents and 
 is responsible to the people, and is in possession of all the apparatus 
 of authority. 
 
 But it has not the constitutional power, is the answer. Whatever it 
 might do beyond the strict limits of the law would be void, and could 
 not command obedience. Thus we sit, spellbound within the invisible 
 walls of an enchanted castle, unable to stir, hand or foot. If the nation
 
 300 APPENDIX. 
 
 cannot be saved according to the Constitution, is the cry, let it perish. 
 Yet what that Constitution is, or what its meaning, no one has the wit 
 to find out. Something, however, must be done, and rather than per- 
 mit Congress to do it, another Government, with unlimited and irre- 
 sponsible power, is proposed, to whose charge is to be committed that 
 Constitution, which cannot be trusted to the existing Government, re- 
 strained as it is by internal structure, and by the continuing control of 
 the people. 
 
 It is a hazardous thing to alter a constitution, by setting aside and 
 supplanting an existing Government in the midst of war. If the plan 
 had been suggested by Mr. Jefferson Davis himself, it could not have 
 been more ingeniously contrived to aid his designs. A divided North, 
 raging parties, one of which opposes the war, popular agitation, possibly 
 popular tumult and convulsion, — these at this time would be to him 
 worth an army. Perhaps for this reason they might not be as agreeable 
 to our army, as they certainly would be to his. A million of citizen 
 soldiers in the field, might choose to have an opinion and a will on the 
 exciting questions involved in such proceedings, especially when their 
 manifest tendency is to strengthen and encourage the enemy. The 
 army, if it moved in the matter at all, would either support the Con- 
 vention or oppose it. If it opposed the Convention, the reign of an- 
 archy would begin. If it supported the Convention, the reign of 
 military power would begin. An army is only safe for the national 
 liberty under a leyislafare, whose power is undisputed. A disputed 
 authority, whose acts every one may call in question, is weak. Almost 
 every act of our Government is declared unconstitutional and void by 
 somebody. Therefore our Government is weak, if, indeed, we have 
 any at all, which begins to be doubtful. Power by the laws of its 
 nature leaves weakness and goes to strength. Power will leave a weak 
 government that has a strong army, and go to the army. 
 
 War is the last resort of parties who have no common superior, 
 acknowledged by both, to settle their disputes. The present war be- 
 tween North and South was caused by the want of such a superior. 
 The want is still unsatisfied. No authority exists, recognized by all,
 
 APPENDIX. 391 
 
 to decide tlie vital questions of the hour. The intelligence of the 
 people has no organ, their will no arm. The Government sits im- 
 prisoned within the walls of the Constitution, ideal walls, which, strange 
 to say, no one can describe, encircling power in a magic ring. With- 
 drawing from this mysterious precinct with superstitious awe, the people 
 are trying to find some power, beyond the enchanted ground, some 
 unlimited and undisputed power, to dispose of vexed questions by 
 thought, instead of by force. It will be fortunate indeed, if they suc- 
 ceed, though everything is possible for the American people. 
 
 It cost England a Cromwell and thirteen years of military despotism, 
 to get a free Parliament, that is to say, a Parliament free to do any- 
 thing the people wished it to do. Cromwell was a great blessing to 
 England, Such men do not grow on every bush, and he arrived at 
 the lucky moment. The time may come, and ere long, when a Crom- 
 well would be a great blessine; to us.
 
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