THE CONSTITUTION CONTINUED.
PROVIDENCE, or God operating through historical facts, constituted the American people one political or sovereign people, existing and acting in particular communities, organizations, called states. This one people organized as states, meet in convention, frame and ordain the constitution of government, or institute a general government in place of the Continental Congress; and the same people, in their respective State organizations, meet in convention in each State, and frame and ordain a particular government for the State individually, which, in union with the General government, constitutes the complete and supreme government within the States, as the General government, in union with all the particular governments, constitutes the complete and supreme government of the nation or whole country. This is clearly the view taken by Mr. Madison in his letter to Mr. Everett, when freed from his theory of the origin of government in compact.
The constitution of the people as one people, and the distinction at the same time of this one people into particular States, precedes the convention, and is the unwritten constitution, the Providential constitution, of the American people or civil society, as distinguished from the constitution of the government, which, whether general or particular, is the ordination of civil society itself. The unwritten constitution is the creation or constitution of the sovereign, and the sovereign providentially constituted constitutes in turn the government, which is not sovereign, but is clothed with just so much and just so little authority as the sovereign wills or ordains.
The sovereign in the republican order is the organic people, or state, and is with us the United States, for with us the organic people exist only as organized into States united, which in their union form one compact and indissoluble whole. That is to say, the organic American people do not exist as a consolidated people or state; they exist only as organized into distinct but inseparable States. Each State is a living member of the one body, and derives its life from its union with the body, so that the American state is one body with many members; and the members, instead of being simply individuals, are States, or individuals organized into States, The body consists of many members, and is one body, because the members are all members of it, and members one of another. It does not exist as separate or distinct from the members, but exists in their solidarity or membership one of another. There is no sovereign people or existence of the United States distinguishable from the people or existence of the particular States united. The people of the United States, the state called the United States, are the people of the particular States united. The solidarity of the members constitutes the unity of the body. The difference between this view and Mr. Madison's is, that while his view supposes the solidarity to be conventional, originating and existing in compact, or agreement, this supposes it to be real, living, and prior to the convention, as much the work of Providence as the existence in the human body of the living solidarity of its members. One law, one life, circulates through all the members, constituting them a living organism, binding them in living union, all to each and each to all.
Such is the sovereign people, and so far the original unwritten constitution. The sovereign, in order to live and act, must have an organ through which he expresses his will. This organ, under the American system, is primarily the Convention. The convention is the supreme political body, the concrete sovereign authority, and exercises practically the whole sovereign power of the people. The convention persists always, although not in permanent session. It can at any time be convened by the ordinary authority of the government, or, in its failure, by a plebiscitum.
Next follows the Government created and constituted by the convention. The government is constituted in such manner, and has such and only such powers, as the convention ordains. The government has, in the strict sense, no political authority under the American system, which separates the government from the convention. All political questions proper, such as the elective franchise, eligibility, the constitution of the several departments of government, as the legislative, the judicial, and the executive, changing, altering, or amending the constitution of government, enlarging or contracting its powers, in a word, all those questions that arise on which it is necessary to take the immediate orders of the sovereign, belong not to the government, but to the convention; and where the will of the sovereign is not sufficiently expressed in the constitution, a new appeal to the convention is necessary, and may always be had.
The constitution of Great Britain makes no distinction between the convention and the government. Theoretically the constitution of Great Britain is feudal, and there is, properly speaking, no British state; there are only the estates, king, lords, and commons, and these three estates constitute the Parliament, which is held to be omnipotent; that is, has the plenitude of political sovereignty. The British Parliament, composed of the three estates, possesses in itself all the powers of the convention in the American constitution, and is at once the convention and the government. The imperial constitution of France recognizes no convention, but clothes the senate with certain political functions, which, in some respects, subjects theoretically the sovereign to his creature. The emperor confessedly holds his power by the grace of God and the will of the nation, which is a clear acknowledgment that the sovereignty vests in the French people as the French state; but the imperial constitution, which is the constitution of the government, not of the state, studies, while acknowledging the sovereignty of the people, to render it nugatory, by transferring it, under various subtle disguises, to the government, and practically to the emperor as chief of the government. The senate, the council of state, the legislative body, and the emperor, are all creatures of the French state, and have properly no political functions, and to give thcm such functions is to place the sovereign under his own subjects! The real aim of the imperial constitution is to secure despotic power under the guise of republicanism. It leaves and is intended to leave the nation no way of practically asserting its sovereignty but by either a revolution or a plebiscitum, and a plebiscitum is permissible only where there is no regular government.
The British constitution is consistent with itself, but imposes no restriction on the power of the government. The French imperial constitution is illogical, inconsistent with itself as well as with the free action of the nation. The American constitution has all the advantages of both, and the disadvantages of neither. The convention is not the government like the British Parliament, nor a creature of the state like the French senate, but the sovereign state itself, in a practical form. By means of the convention the government is restricted to its delegated powers, and these, if found in practice either too great or too small, can be enlarged or contracted in a regular, orderly way, without resorting to a revolution or to a plebiscitum. Whatever political grievances there may be, there is always present the sovereign convention competent to redress them. The efficiency of power is thus secured without danger to liberty, and freedom without danger to power. The recognition of the convention, the real political sovereign of the country, and its separation from and independence of the ordinary government, is one of the most striking features of the American constitution.
The next thing to be noted, after the convention, is the constitution by the convention of the government. This constitution, as Mr. Madison well observes, divides the powers conceded by the convention to government between the General government and the particular State governments. Strictly speaking, the government is one, and its powers only are divided and exercised by two sets of agents or ministries. This division of the powers of government could never have been established by the convention if the American people had not been providentially constituted one people, existing and acting through particular State organizations. Here the unwritten constitution, or the constitution written in the people themselves, rendered practicable and dictated the written constitution, or constitution ordained by the convention and engrossed on parchment. It only expresses in the government the fact which pre-existed in the national organization and life.
This division of the powers of government is peculiar to the United States, and is an effective safeguard against both feudal disintegration and Roman centralism. Misled by their prejudices and peculiar interests, a portion of the people of the United States, pleading in their justification the theory of State sovereignty, attempted disintegration, secession, and national independence separate from that of the United States, but the central force of the constitution was too strong for them to succeed. The unity of the nation was too strong to be effectually broken. No doubt the reaction against secession and disintegration will strengthen the tendency to centralism, but centralism can succeed no better than disintegration has succeeded, because the General government has no subsistentia, no suppositum, to borrow a theological term, outside or independent of the States. The particular governments are stronger, if there be any difference, to protect the States against centralism, than the General government is to protect the Union against disintegration; and after swing ing for a time too far toward one extreme and then too far toward the other, the public mind will recover its equilibrium, and the government move on in its constitutional path.
Republican Rome attempted to guard against excessive centralism by the tribunitial veto, or by the organization of a negative or obstructive power. Mr. Calhoun thought this admirable, and wished to effect the same end here, where it is secured by other, more effective, and less objectionable means, by a State veto on the acts of Congress, by a dual executive, and by substituting concurrent for numerical majorities. Imperial Rome gradually swept away the tribunitial veto, concentrated all power in the hands of the emperor, became completely centralized, and fell. The British constitution seeks the same end by substituting estates for the state, and establishing a mixed government, in which monarchy, aristocracy, and democracy temper, check, or balance each other; but practically the commons estate has become supreme, and the nobility govern not in the house of lords, and can really influence public affairs only through the house of commons. The principle of the British constitution is not the division of the powers of government, but the antagonism of estates, or rather of interests, trusting to the obstructive influence of that antagonism to preserve the government from pure centralism. Hence the study of the British statesman is to manage diverse and antagonistic parties and interests so as to gain the ability to act, which he can do only by intrigue, cajolery, bribery in one form or another, and corruption of every sort. The British government cannot be carried on by fair, honest, and honorable means, any more than could the Roman under the antagonism created by the tribunitial veto. The French tried the English system of organized antagonism in 1789, as a cure for the centralism introduced by Richelieu and Louis XIV., and again under the Restoration and Louis Philippe, and called it the system of constitutional guarantees; but they could never manage it, and they have taken refuge in unmitigated centralism under Napoleon III., who, however well disposed, finds no means in the constitution of the French nation of tempering it. The English system, called the constitutional, and sometimes the parliamentary system, will not work in France, and indeed works really well nowhere.
The American system, sometimes called the Federal system, is not founded on antagonism of classes, estates, or interests, and is in no sense a system of checks and balances. It needs and tolerates no obstructive forces. It does not pit section against section, the States severally against the General government, nor the General government against the State governments, and nothing is more hurtful than the attempt to explain it and work it on the principles of British constitutionalism. The convention created no antagonistic powers; it simply divided the powers of government, and gave neither to the General government nor to the State governments all the powers of government, nor in any instance did it give to the two governments jurisdiction in the same matters. Hence each has its own sphere, in which it can move on without colliding with that of the other. Each is independent and complete in relation to its own work, incomplete and dependent on the other for the complete work of government.
The division of power is not between a national government and State governments, but between a general government and particular governments. The General government, inasmuch as it extends to matters common to all the States, is usually called the Government of the United States, and sometimes the Federal government, to distinguish it from the particular or State governments, but without strict propriety; for the government of the United States, or the Federal government; means, in strictness, both the General government and the particular governments, since neither is in itself the complete government of the country. The General government has authority within each of the States, and each of the State governments has authority in the Union. The line between the Union and the States severally, is not precisely the line between the General government and the particular governments. As, for instance, the General government lays direct taxes on the people of the States, and collects internal revenue within them; and the citizens of a particular State, and none others, are electors of President and Vice-President of the United States, and representatives in the lower house of Congress, while senators in Congress are elected by the State legislatures themselves.
The line that distinguishes the two governments is that which distinguishes the general relations and interests from the particular relations and interests of the people of the United States. These general relations and interests are placed under the General government, which, because its jurisdiction is coextensive with the Union, is called the Government of the United States; the particular relations and interests are placed under particular governments, which, because their jurisdiction is only coextensive with the States respectively, are called State governments. The General government, governs supremely all the people of the United States and Territories belonging to the Union, in all their general relations and interests, or relations and interests common alike to them all; the particular or State government governs supremely the people of a particular State, as Massachusetts, New York, or New Jersey, in all that pertains to their particular or private rights, relations, and interests. The powers of each are equally sovereign, and neither are derived from the other. The State governments are not subordinate to the General government, nor the General government to the State governments. They are co-ordinate governments, each standing on the same level, and deriving its powers from the same sovereign authority. In their respective spheres neither yields to the other. In relation to the matters within its jurisdiction, each government is independent and supreme in regard of the other, and subject only to the convention.
The powers of the General government are the power
To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the general welfare of the United States; to borrow money on the credit of the United States; to regulate commerce with foreign nations, among the several States, and with the Indian tribes; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; to coin money and regulate the value thereof, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the United States; to establish post-offices and post-roads; to promote the progress of science and of the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and of governing such part of them as may be employed in the service of the United States; to exercise exclusive legislation in all cases whatsoever over such district, not exceeding ten miles square, as may by cession of particular States and the acceptance of Congress, become the seat of the government of the United States, and to exercise a like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or office thereof.
In addition to these, the General government is clothed with the treaty-making power, and the whole charge of the foreign relations of the country; with power to admit new States into the Union; to dispose of and make all needful rules and regulations concerning the territory and all other property belonging to the United States; to declare, with certain restrictions, the punishment of treason, the constitution itself defining what is treason against the United States; and to propose, or to call, on the application of the legislatures of two-thirds of all the states, a convention for proposing amendments to this constitution; and is vested with supreme judicial power, original or appellate, in all cases of law and equity arising under this constitution, the laws of the United States, and treaties made or to be made under their authority, in all cases affecting ambassadors, other public ministers, and consuls, in all cases of admiralty and maritime jurisdiction, in all controversies to which the United States shall be a party, all controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign states, citizens, or subjects.
These, with what is incidental to them, and what is necessary and proper to carry them into effect, are all the positive powers with which the convention vests the General government, or government of the United States, as distinguished from the governments of the particular States; and these, with the exception of what relates to the district in which it has its seat, and places of forts, magazines, &c., are of a general nature, and restricted to the common relations and interests of the people, or at least to interests and relations which extend beyond the limits of a particular State, They are all powers that regard matters which extend beyond not only the individual citizen, but the individual State, and affect alike the relations and interests of all the States, or matters which cannot be disposed of by a State government without the exercise of extra-territorial jurisdiction. They give the government no jurisdiction of questions which affect individuals or citizens only in their private and domestic relations which lie wholly within a particular State. The General government does not legislate concerning private rights, whether of persons or things, the tenure of real estate, marriage, dower, inheritance, wills, the transference or transmission of property, real or personal; it can charter no private corporations, out of the District of Columbia, for business, literary, scientific, or eleemosynary purposes, establish no schools, found no colleges or universities, and promote science and the useful arts only by securing to authors and inventors for a time the exclusive right to their writings and discoveries. The United States Bank was manifestly unconstitutional, as probably are the present so-called national banks. The United States Bank was a private or particular corporation, and the present national banks are only corporations of the same sort, though organized under a general law. The pretence that they are established to supply a national currency does not save their constitutionality, for the convention has not given the General government the power nor imposed on it the duty of furnishing a national currency. To coin money, and regulate the value thereof is something very different from authorizing private companies to issue bank notes, on the basis of the public stocks held as private property, or even on what is called a specie basis. To claim the power under the general welfare clause would be a simple mockery of good sense. It is no more for the general welfare than any other successful private business. The private welfare of each is, no doubt, for the welfare of all, but not therefore is it the "general welfare," for what is private, particular in its nature, is not and cannot be general. To understand by general welfare that which is for the individual welfare of all or the greater number, would be to claim for the General government all the powers of government; and to deny that very division of powers which is the crowning merit of the American system. The general welfare, by the very force of the words themselves, means the common as distinguished from the private or individual welfare. The system of national banks may or may not be a good and desirable system, but it is difficult to understand the constitutional power of the General government to establish it.
On the ground that its powers are general, not particular, the General government has no power to lay a protective tariff. It can lay a tariff for revenue, not for protection of home manufactures or home industry; for the interests fostered, even though indirectly advantageous to the whole people, are in their nature private or particular, not general interests, and chiefly interests of private corporations and capitalists. Their incidental or even consequential effects do not change their direct and essential nature. So with domestic slavery. Slavery comes under the head of private rights, whether regarded on the side of the master or on the side of the slave. The right of a citizen to hold a slave, if a right at all, is the private right of property, and the right of the slave to his freedom is a private and personal right, and neither is placed under the safeguard of the General government, which has nowhere, unless in the District of Columbia and the places over which it has exclusive legislative power in all cases whatsoever, either the right to establish it or to abolish it, except perhaps under the war power, as a military necessity, an indemnity for the past, or a security for the future.
This applies to what are called Territories as well as to the States. The right of the government to govern the Territories in regard to private and particular rights and interests, is derived from no express grant of power, and is held only ex necessitate the United States owning the domain, and there being no other authority competent to govern them. But, as in the case of all powers held ex necessitate, the power is restricted to the absolute necessity in the case. What are called Territorial governments, to distinguish them from the State governments, are only provisional governments, and can touch private rights and interests no further than is necessary to preserve order and prepare the way for the organization and installation of a regular State government. Till then the law governing private rights is the law that was in force, if any such there was, when the territory became by purchase, by conquest, or by treaty, attached to the domain of the United States.
Hence the Supreme Court declared unconstitutional the ordinance of 1787, prohibiting slavery in what was called the Territory of the Northwest, and the so-called Missouri Compromise, prohibiting slavery north of the parallel 36° 30'. The Wilmot proviso was for the same reason unconstitutional. The General government never had and has not any power to exclude slavery from the Territories, any more than to abolish it in the States. But slavery being a local institution, sustained neither by the law of nature nor the law of nations, no citizen migrating from a slave State could carry his slaves with him, and hold them as slaves in the Territory. Rights enacted by local law are rights only in that locality, and slaves carried by their masters into a slave State even, are free, unless the State into which they are carried enacts to the contrary. The only persons that could be held as slaves in a Territory would be those who were slaves or the children of those who were slaves in the Territory when it passed to the United States. The whole controversy on slavery in the Territories, and which culminated in the civil war, was wholly unnecessary, and never could have occurred had the constitution been properly understood and adhered to by both sides. True, Congress could not exclude slaveiy from the Territory, but neither could citizens migrating to them hold slaves in them; and so really slavery was virtually excluded, for the inhabitants in nearly all of them, not emigrants from the States after the cession to the United States, were too few to be counted.
The General government has power to establish a uniform rule of naturalization, to which all the States must conform, and it was very proper that it should have this power, so as to prevent one State from gaining by its naturalization laws an undue advantage over another; but the General government has itself no power to naturalize a single foreigner, or in any case to say who shall or who shall not be citizens, either of a State or of the United States, or to declare who may or may not be electors even of its own officers. The convention ordains that members of the house of representatives shall be chosen by electors who have the qualifications requisite for electors of the most numerous branch of the State legislature, but the State determines those qualifications, and who do or do not possess them; that the senators shall be chosen by the State legislatures, and that the electors of President and Vice-President shall be appointed in such manner as the respective State legislatures may direct. The whole question of citizenship, what shall or shall not be the qualifications of electors, who shall or shall not be freemen, is reserved to the States, as coming under the head of personal or private rights and franchises. In practice, the exact line of demarcation may not always have been strictly observed either by the General government or by the State governments; but a careful study of the constitution cannot fail to show that the division of powers is the division or distinction between the public and general relations and interests, rights and duties of the people, and their private and particular relations and interests, rights and duties. As these two classes of relations and interests, rights and duties, though distinguishable, are really inseparable in nature, it follows that the two governments are essential to the existence of a complete government, or to the existence of a real government in its plenitude and integrity. Left to either alone, the people would have only an incomplete, an initial, or inchoate government. The General government is the complement of the State governments, and the State governments are the complement of the General government.
The consideration of the powers denied by the convention to the General government and to the State governments respectively, will lead to the same conclusion. To the General government is denied expressly or by necessary implication all jurisdiction in matters of private rights and interests, and to the State government is denied all jurisdiction in rights or interests which extend, as has been said, beyond the boundaries of the State, "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money, emit bills of credit, make any thing but gold and silver coin a tender in the payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships-of-war in time of peace, enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
The powers denied to the States in some matters which are rather private and particular, such as bills of attainder, ex post facto laws, laws impairing the obligation of contracts, granting titles of nobility, are denied equally to the General government. There is evidently a profound logic in the constitution, and there is not a single provision in it that is arbitrary, or anomalous, or that does not harmonize dialectically with the whole, and with the real constitution of the American people. At first sight the reservation to the State of the appointment of the officers of the militia might seem an anomaly; but as the whole subject of internal police belongs to the State, it should have some military force at its command. The subject of bankruptcies, also, might seem to be more properly within the province of the State, and so it would be if commerce between the several States had not been placed under Congress, or if trade were confined to the citizens of the State and within its boundaries; but as such is not the case, it was necessary to place it under the General government, in order that laws on the subject might be uniform throughout the Union, and that the citizens of all the States, and foreigners trading with them, should be placed on an equal footing, and have the same remedies. The subject follows naturally in the train of commerce, for bankruptcies; as understood at the time, were confined to the mercantile class, bankers, and brokers; and since the regulation of commerce, foreign and inter-state, was to be placed under the sole charge of the General government, it was necessary that bankruptcy should be included. The subject of patents is placed under the General government, though the patent is a private right, because it was the will of the convention that the patent should be good in all the States, as affording more encouragement to science and the useful arts than if good only within a single State, or if the power were left to each State to recognize or not patents granted by another. The right created, though private in its nature, is yet general or common to all the States in its enjoyment or exercise.
The division of the powers of government between a General government and particular governments, rendered possible and practicable by the original constitution of the people themselves, as one people existing and acting through State organizations, is the American method of guarding against the undue centralism to which Roman imperialism inevitably tends; and it is far simpler and more effective than any of the European systems of mixed governments, which seek their end by organizing an antagonism of interests or classes. The American method demands no such antagonism, no neutralizing of one social force by another, but avails itself of all the forces of society, organizes them dialectically, not antagonistically, and thus protects with equal efficiency both public authority and private rights. The General government can never oppress the people as individuals, or abridge their private rights or personal freedom and independence, because these are not within its jurisdiction, but are placed in charge, within each State, of the State government, which, within its sphere, governs as supremely as the General government: the State governments cannot weaken the public authority of the nation or oppress the people in their general rights and interests, for these are withdrawn from State jurisdiction, and placed under charge of a General government, which, in its sphere, governs as supremely as the State government. There is no resort to a system of checks and balances; there is no restraint on power, and no systematic distrust of power, but simply a division of powers between two co-ordinate governments, distinct but inseparable, moving in distinct spheres, but in the same direction, or to a common end. The system is no invention of man, is no creation of the convention, but is given us by Providence in the living constitution of the American people. The merit of the statesmen of 1787 is that they did not destroy or deface the work of Providence, but accepted it, and organized the government in harmony with the real order, the real elements given them. They suffered themselves in all their positive substantial work to be governed by reality, not by theories and speculations. In this they proved themselves statesmen, and their work survives; and the republic, laugh as sciolists may, is, for the present and future, the model republic as much so as was Rome in her day; and it is not simply national pride nor American self-conceit that pronounces its establishment the beginning of a new and more advanced order of civilization; such is really the fact.
The only apparently weak point in the system is in the particular States themselves. Feudalism protected the feudal aristocracy effectively for a time against both the king and the people, but left the king and the people without protection against the aristocracy, and hence it fell. It was not adequate to the wants of civil society, did not harmonize all social elements, and protect all social and individual rights and interests, and therefore could not but fail The General government takes care of public authority and rights; the State protects private rights and personal freedom as against the General government: but what protects the citizens in their private rights, their personal freedom and independence, against the particular State government? Universal suffrage, answers the democrat. Armed with the ballot, more powerful than the sword, each citizen is able to protect himself. But this is theory, not reality. If it were true, the division of the powers of government between two co-ordinate governments would be of no practical importance. Experience does not sustain the theory, and the power of the ballot to protect the individual may be rendered ineffective by the tyranny of party. Experience proves that the ballot is far less effective in securing the freedom and independence of the individual citizen than is commonly pretended. The ballot of an isolated individual counts for nothing. The individual, though armed with the ballot, is as powerless, if he stands alone, as if he had it not To render it of any avail he must associate himself with a party, and look for his success in the success of his party; and to secure the success of his party, he must give up to it his own private convictions and free will. In practice, individuals are nothing individually, and parties are every thing. Even the suppression of the late rebellion, and the support of the Administration in doing it, was made a party question, and the government found the leaders of the party opposed to the Republican party an obstacle hardly less difficult to surmount than the chiefs of the armies of the so-called Confederate States.
Parties are formed, one hardly knows how, and controlled, no one knows by whom; but usually by demagogues, men who have some private or personal purposes, for which they wish, through party, to use the government. Parties have no conscience, no responsibility, and their very reason of being is, the usurpation and concentration of power. The real practical tendency of universal suffrage is to democratic, instead of an imperial, centralism.
What is to guard against this centralism? Not universal suffrage, for that tends to create it; and if the government is left to it, the government becomes practically the will of an ever shifting and irresponsible majority. Is the remedy in written or paper constitutions? Party can break through them, and by making the judges elective by party, for short terms, and re-eligible, can do so with impunity. In several of the States, the dominant majority have gained the power to govern at will, without any let or hindrance. Besides, constitutions can be altered, and have been altered, very nearly at the will of the majority. No mere paper constitutions are any protection against the usurpations of party, for party will always grasp all the power it can.
Yet the evil is not so great as it seems, for in most of the States the principle of division of powers is carried into the bosom of the State itself; in some States further than in others, but in all it obtains to some extent. In what are called the New England States, the best-governed portion of the Union, each town is a corporation, having important powers and the charge of all purely local matters chooses its own officers, manages its own finances, takes charge of its own poor, of its own roads and bridges, and of the education of its own children. Between these corporations and the State government are the counties, that take charge of another class of interests, more general than those under the charge of the town, but less general than those of the State. In the great central and Northwestern States the same system obtains, though less completely carried out. In the Southern and Southwestern States, the town corporations hardly exist, and the rights and interests of the poorer classes of persons have been less well protected in them than in the Northern and Eastern States. But with the abolition of slavery, and the lessening of the influence of the wealthy slaveholding class, with the return of peace and the revival of agricultural, industrial, and commercial prosperity, the New England system, in its main features, is pretty sure to be gradually introduced, or developed, and the division of powers in the State to be as effectively and as systematically carried out as it is between the General government and the particular or State governments. So, though universal suffrage, good as far as it goes, is not alone sufficient, the division of powers affords with it a not inadequate protection. No government, whose workings are intrusted to men, ever is or can be practically perfect secure all good, and guard against all evil. In all human governments there will be defects and abuses, and he is no wise man who expects perfection from imperfection. But the American constitution, taken as a whole, and in all its parts, is the least imperfect that has ever existed, and under it individual rights, personal freedom and independence, as well as public authority or society, are better protected than under any other; and as the few barbaric elements retained from the feudal ages are eliminated, the standard of education elevated, and the whole population Americanized, moulded by and to the American system, it will be found to effect all the good, with as little of the evil, as can be reasonably expected from any possible civil government or political constitution of society.
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