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cious selection of their public servants, and especially more regardful of their relative position in the country, than to follow examples so extremely questionable, nay, so certainly bad. I know that patronage has an odious sound. The notion of it is associated strongly with that of favoritism and corruption. Very justly so; for the two things have gone much together. But what are you to do? Is there a substitute that can be expected to do as well for the public service? And now that the Union is stretching abroad over the earth, does it not become the particular governments to maintain as much prominence as they can, and not gratuitously hazard the chance of being by and by overlooked?
In the next place, I see a spot upon religious aspect of our present State constitutions generally, "which was not so before." Not only is it not required any longer, (with two or three exceptions,) that the managers of our public affairs shall avow themselves Christians, but there seems to be a kind of studious liberality towards irreligion, a worldliness of impartiality as between those professing the faith of the country and those who know not or despise the country's God, that is matter of wonder on several accounts.
First, it is an unprovoked, and as far as I can see, an objectless departure from the pious politics of the fathers.
Secondly, it is a regulator taken out of the constitutional time-piece, which is certainly the worse for wanting it. Need I argue the point? Is it not apparent in reason, that of all the checks of a general nature, calculated to keep men back from malversation in office, and to make them safe trustees of the people's interests, Christianity stands first in order, both for facility of application, and for practical force? And there are names of authority, respected by the world itself, that may be cited to the like purpose. "Religion is the basis of society," says Mr. Burke, and "they who hold revelation" (that is, the Christian faith) "give double assurance to their country."* De Tocqueville regards our national religion as the foundation of our morals. Another French writer of eminence tells us Christianity is "that re
* 3 Works, 106, 5th edit., 285. Democracy in America, 31, 2,
ligion, whose liberal spirit prepared, and can alone sustain, all the great institutions of modern times."* And even Mr. Jefferson, who has done more by word and deed to unchristianize our politics than any other man, was not prevented by his infidelity from acknowledging the useful bearing of Christian sentiments in every form upon the health and good order of society.†
Originally, as we have seen, this faith of the country was also an element of its constitutional forms. It is such no more. The municipal laws are not yet purged of it; God grant they never may be; but the strong attestations of the early charterrecords have been mostly blotted out,
Is this for the better or the worse? Whether terms of religious profession ought to be imposed on candidates for political office is not the question. The question is, ought the religion of the land to disappear entirely from the constitutions by which it was once so conspicuously honored? Should a stranger be unable to learn from those records, whether we are Turks or Christians?
Another topic, that calls for more notice than there is room for now, is the present common law aspect of our politics, as compared with the past. There are signs here of incipient discontent with the old order of things. I see them as I think in several of the States. In some, direct aggressions upon our common law jurisprudence by constitutional provisions that violate it; such as the restriction in New York upon leases of agricultural land, and the admission both of interested persons and of atheists to testify in judicial proceedings; such also as the canons in another State, (Texas,) overruling the common law of coverture as to property rights. It is needless to multiply instances.
There is a form of evidence that might not strike the general eye as bearing on the point; and yet I think it does by implication; I mean, the use of written bills of rights, which are now, with three or four exceptions, appended in all the States to their constitutional records, or inserted
* Cousin, Republican Institutions, 289. See his letters, late in life, to the elder Adams.
in them. These documents are but repetitions, in one form or another, of common law principles, and it argues a distrust of the security of those principles in their unwritten, that is, their natural state, to bolster them up in this manner.
But the most startling fact that has occurred upon the subject, is the recent undertaking in New York to reduce the common law to a code; an enterprise that one knows hardly whether to smile at or be sad about it. Yes, the common law is there to be codified; in other words, drowned bodily in an ocean of statutes; and two sets of State commissioners are even now ferrying the poor victims out to sea for the purpose-a jurisprudential noyade! Indeed, a code of practice has already been achieved, at least in part. Do you ask what followed? First, I am told about a year of professional blundering, and then- another code! or virtually another; which last is now on trial, and expected to serve till the legislature meet again next winter. Such are written laws, so versatile, so transient. By the time you understand them, (often sooner,) you look for them in vain; they are no more. Frustra comprensa manus effugit imago.
But the subject is too large for my present limits, and must be deferred.
One topic more as to the State economies. The later constitutions embrace notoriously many things which have heretofore been looked upon as things of ordinary government. The first, seventh, and eighth articles of the latest New York constitution are full of instances; interfering with portions of the law of land and of contracts; setting up rules of policy for fiscal administration; directing what shall or shall not be done with the public canals and salt-works; putting limits upon the use to be made of the State's credit, and how its debtors are to be treated; laying down plans and rules of legislation in regard to corporations, &c. The Delaware constitution of 1831 has other instances of yet minuter detail; going down even to the law of forensic procedure; as when a defendant may bring money into court, and with what advantage; whether a suit in chancery shall abate or not by the death of a party; when an appeal is to work a stay of proceedings, and the like. Other items still may be found in several
of the Southern constitutions, in regard to slavery, slave-merchandising, emancipation, free negroes, &c.
Now the members of a convention are no part of government proper; they are agents of the people for a purpose quite distinct from all administrative functions. But suppose their jurisdiction once enlarged by usage to a general legislative power; we have then two legislatures; one a legislature in ordinary, where the people are served by a standing council, who adopt measures for them, and are acted on in turn by the electoral sovereignty as terms of office expire; the other, a special and extraordinary legislature, fresh from the popular mass, and through which that mass may almost be said to carry on the government by a direct action upon measures rather than men. Literally direct this action of the people certainly is not. But is it therefore legitimate? If literally direct, it would be rather democratic than republican, and would violate the theory of our system. Is it not such a violation, then, in spirit? For in spirit, it exhibits the people acting irregularly, that is, upon public measures; overreaching their administrative agents, and taking the government virtually into their own hands.
Observe, too, the tenor of sundry provisions in different constitutions touching future amendments, and requiring that these, after being voted upon by the legislature, shall be submitted to the people and finally ratified or rejected by them. The last New Jersey constitution gives us an example. That of Louisiana, another. We have a third in Tennessee.
Now supposing a constitution may em-. brace subjects of ordinary governments, an amendment may of course do the same; and then, with these systematic provisions for amending by the popular voice, our republic begins in earnest to look and operate like a democracy; the state legisla tures playing the insignificant part of preparing statutes for the people to enact. And what is remarkable, there is, in the constitution of Missouri, an actual adoption of this relationship between the legislature and the people as regards all future enactments involving the public credit for any sum beyond a gross debt of twenty-five thousand dollars.
It is distressing to contemplate these facts, in connection with the whole series of changes that our constitutional polity has undergone in other respects already noticed. Those changes have been all in a progress towards a consummation which these facts, as far as they go, realize. If there be patriots still among us, let them take heed.
One word, in conclusion, as to the economy and history of the central gov
Its economy, constitutionally speaking, is not much altered. A parcel of declarative articles have been appended, that are of little consequence for the most part. The amendment in regard to presidential elections is I think a step backwards. It is at all events a check thrown away, that
might have saved us the folly and misfortune of putting at least one unfit person into the president's chair through the vice-presidency.
But the history of the Union government-what has that been? One of gradual and stupendous territorial growth; with all the natural consequences of wealth, patronage, fame, power. To accomplish which, the Constitution has been overstepped in various ways, without awakening any general reprehension on the part of the particular states or the people. In a word, while the states have gone down materially in the tone and character of their institutions, the stature of the Union has become gigantic, with a seeming health of frame equal to its occasions, and a mind yet unsatisfied with acquisition. H. W. WARNER.
The following article from an able Southern pen, we give without commentary or curtailment, not because we mean to endorse its sentiments; but simply to give our Northern readers a true representation of the political philosophy and sentiment most prevalent in the South. The articles alluded and objected to by our correspondent are from the pen of an experienced lawyer and constitutionalist, who adds great practical experience to profound learning-the result of a life's study of the laws and political systems of the States. A comparison of the two articles in this number will be found highly instructive.—ED.
THOSE of your correspondents, Mr. Editor, who reside in remote parts of the Union, necessarily labor under the great disadvantage of often having their commumunications delayed until the subjects to which they refer have become somewhat passé, or have lost their novelty. The writer of the present essay, for instance, did not see your July number until the end of the month, and therefore could not sooner offer the remarks herewith sent, on the article entitled "The Republic," which appeared in that number. The writer of the above article wields an able pen, and has made the most of the argument in favor of the popular origin of the Constitution; though he advances his views with a confidence and dogmatism that must form an abatement with most readers from the general merits of the essay.
The people, as being the acknowledged source of all power, not being responsible for their acts, excepting in so far as the evils by which they may be attended may tend to render them so, possess, even under ordinary circumstances, a political preponderance and sway adverse to the stability and duration of a system of so mixed a character and so artificially and delicately balanced as that of the United States. As in a constitutional monarchy the influence of the crown, however jealously guarded against, ever proves too strong for the barriers set up to restrain it,
so in a republic the sovereign power of the people can rarely be confined within its prescribed and legitimate limits, but is sure ultimately to overleap, with the resistless force of a spring-flood, every landmark of the Constitution-which serves rather as a Nilometer to mark the steady and irresistible encroachments of the stream, than as a dyke to restrain it within its proper channel. This tendency to encroachment, and necessary prepollency of the popular power in every government partaking of a free form, is but feebly counteracted under a federal system like that of this country, in which a representation of twenty-four independent, and so far disjoined states, is alone opposed to this concentrated, ever-increasing, and overwhelming power. The anti-federal influences, ever at work, to popularize and weaken the system, are yet further strengthened, and acquire daily force by the rapid augmentation and numerical magnitude of the general population; which being again spread over a wider extent of territory than was ever before subjected to the fasces of a republic, renders its claims to national attributes, or to the sovereignty, the more imposing and the more difficult to be resisted. It will thus be seen that under our complicated system, a variety of circumstances combine to give an undue influence to the democratic principle, and a mechanical momentum, if we may so phrase it, to the irregular and cometary movements of the popular mass, that occasions its encroachment on the starry system of the Union to be daily more felt and to be daily more formidable. To all these disturbing causes another has been added, which has had more influence than all the rest in deranging the action of the government and pushing from its stool the federal authority-already sufficiently "cribbed and confined" by the jealous and abundantly cautious provisions of the Constitution. We refer to the false and comparatively new-fangled theory, advocated by your correspondent, by which a nation
al origin is assigned to the Constitution; | in the language of this clause to counand the States which formed the Union, tenance the idea, that it was the inand on whose substantive and independent tention of the framers of the Constitution, existence its duration depends, are quib- or of the co-parties to it, to dissolve the bled down to mere municipal corporations, confederacy, and form a new government, and considered as but twinkling satellites, founded on a popular, instead of a federal, revolving around the great central sun of basis. Where is there an instance in the system, the General Government. history of a general felo de se-a simultaThrough the wide door thrown open by neous suicide of this kind-by whole this theory, and the still further ingress States, enjoying independence, freedom, afforded them by the large representation and sovereignty; and this for the mere which they enjoy in the Congress of the purpose of making room for a new governUnited States, the people have rushed into ment, which it was quite as easy for them the sanctuary and been enabled to sur- to have created by retaining, as by deprise and overcome (if we may be allowed stroying, their political existence. What the metaphor,) the guards of the fair tem- possible inducement had the people of the ple of Liberty, which, by its composite separate and sovereign States to abdicate strength, and the exquisite skill with their power and authority, and lay them which the different orders of political ar- at the feet of a government, or rather idol, chitecture were blended in its structure set up by their own hands; when the into one harmonious and symmetrical object to be accomplished by this infatuwhole, attracted the admiring gaze of the ated nullification of themselves, could be world, and seemed destined to endure for- quite as well attained by the simple apever. In this way an undue power and pointment of a common agent, or federal preponderance have been acquired by the fiduciary, accredited to other governments people, as a mass, which they not only for the purpose of attending to their never enjoyed as colonies or under the old foreign affairs, and such other concerns of confederation, but which is wholly incon- the partnership, which it would be less sistent with the character and incompati- troublesome to them to transact through ble with the existence of a federal form of subordinates, than to take under their government, or one founded on a union of own management. That the government free and independent states. Apart from is an union of some sort, will not be the evils which have resulted to the coun- denied; and as an union of the people try from the adoption and prevalence of with themselves is a manifest absurdity, it this mistaken theory-that it is mistaken is only in their State capacity, or as disis rendered sufficiently apparent from the tinct and independent communities, that circumstance that of the supposed people they could enter into political alliance of to whose action as a collective body the any kind, or give those mutual guaranties Constitution is assumed to have owed its and pledges to each other which they origin, no trace is to be found, and no re- have so deliberately and solemnly done in cord remains except in the opening clause the Constitution. To speak then of a of the instrument, where, alone, the friends government thus constituted, as one of of this phantom nation have been enabled popular origin, in the sense in which those to discover any ground or authority for terms are generally used, is a mere unthe hypothesis they support. Yet in this candid quibble, or an attempt to evade the very clause the Constitution is declared to force of plain facts, and the testimony of be the work of the people of the United contemporary history. The Constitution States, and not of the united people of the is, indeed, of popular, but not of national, States; and to have been adopted for the origin; the whole system, both State and express purpose of rendering the union Federal, resting on the people-not as a previously existing between them as sepa- collective body-but as free, sovereign, rate sovereignties, more perfect; which and neighboring communities, confedercould only be done by drawing still closer ated for mutual and general benefit. The the ties which already thus bound them legislatures of the States could not have together as a confederacy of free and inde- formed a federal government of this kind, pendent republics. There is surely nothing as they could not transfer, or in any