Page images

thus far, a union of consolidation ? And how continue to sustain a relation of paa State which has not the larger and ternity to a system of which they have loftier kind of sovereignty that denotes become mere members for a subordinate relative independence is not a nation, not purpose ? a sovereign State.* Courtesy of speech But there is another style of constitumay keep up the flattery of an old title, ency that is also made much of in certain but the language of facts and principles quarters. It is said the States are the has no palaver.

true patrons of the general government, The only question that admits of debate having, in one way or another, ihe appointin this connection, respects the powers ment of its officers, who are thereupon reserved to the States for the management claimed as virtual representatives of these of their internal affairs.

sovereign bodies politic. And the colorAnd here, undoubtedly, the government able circumstance that federal senators are is one, not of consolidated union, but of advanced to their places by the votes of combined agencies; and these agencies are the local legislatures, has led judicious independent of each other, independent minds into a partial acquiescence in these mainly of the central authority itself. The visionary conceits. Let us see where the tree is now no longer a naked stem; it is truth lies. a trunk with many branches. As far as In the first place, the State legislatures concerns the strictly national powers, it is are not identically the States; not a jot still a homogeneous body, undivided, un more so than the governors are, or even marked with a seam. The branches are the judges. To see the States in their the territorial departments. These part organic capacity, we must look at their off at the precise point where nationality entire organism—legislative, executive, juceases and home life begins. What they dicial. Do we see the whole government are good for, and to what end they are of the Union in Congress ? Has the preserved and employed, is thus apparent. President no necessary part in that govAt the same time, the jurisdiction of ernment?

It takes ihe complete agency the departments is mostly sovereign, for it corps of the Constitution to show the is without appeal. But it is not of the country's corporate existence; the complete kind regarded by writers upon public law forms of ordinary government procedure to as Slale sovereignty. All power without utter its voice. So that an appointment appeal is sovereign. The Common Coun- by two legislative chambers is no more cil of New York have a large measure of the act of an organic State than it such power, and it is as truly sovereign would be if performed by one chamber, as any that the State government at by the governor alone, or by the suAlbany wields. In that case, as in this, preme court. there is no appeal, no higher jurisdiction But, in the second place, the power to control or meddle. A board of super- exercised in such an appointment is not visors has sovereign power; a colonel of State power. It has no natural connecmilitia has it; a parent has it. But to tion with State officers of any name or make a sovereign Stale, nationality, as well grade. The agency is delegated by the as sorereignty of power, is necessary. The federal Constitution. The states have it government must have an external aspect; not in their own right. The people of the it must look abroad as well as at home, States, respectively, could not confer it if and be capable of free discretionary inter- they would. We have not been called to course with other governments. It requires witness the folly of an effort of the kind. an unstinted, unmeasured plenitude of na As, therefore, it is neither the State govtional power to make a sovereign State. ernments, in their entirety, that make the

Admitting, therefore, that the States of appointments here referred to, nor State the Republic had once this character, yet, power that is exercised in making them, if they lost it by the act of union, how the States are in no respect the constituare they now to be regarded as con ents even of federal senators, much less of stituents” of the federal government ?— other functionaries in the federal system,

whose election is by other agencies, or by * Vattel, 16, 32, 234.

the people directly

I am well aware of the existence of a 1 jects of representation to their own deleloose form of speech, used with much gates in the State governments. freedom by unthinking persons, and some I say this form of speech is historical. times in accommodation to their under- It began to be used before the federal standings, by men of eminence and dis- Constitution was adopted, and the fact tinction, to the effect that officers of that it has been common since, is thus government are the representatives of the partially explained. districts or bodies in particular to which But there is a further explanation. they owe their elevation. Thus, the city Every person chosen to an office is the of New York is said to have so many rep- delegate, the choice, the man of bis imresentatives in Congress, and if one of mediate constituents. They feel as if they them should die during his term, the city had a kind of special property in him ; would, till a new election, be regarded as and as delegates and representatives are but partially represented. It was a great mere synonyms in vulgar parlance, the tenet of freedom in colonial times, that delegate of a county is the county repreunless we were represented in parliament, sentative, and the senators sent to Con(that is, had members of our own choice gress by the legislature of a State are there,) we could not be taxed by English regarded and currently spoken of as State law. General Hamilton himself, in the senators. The ordinary meaning of such ninth “ Federalist,” speaks of the States expressions is true; for the refined and being allowed by the Constitution “a di- important principle of government reprerect representation in the Senateof the sentation is no part of that meaning ; nor Union. Nay, we have similar language is the principle in question probably unin yet higher records. “No State,” say derstood with any approach to accuracy the old articles of confederation, “shall be by one in twenty of the prattlers who thus represented in Congress by less than two seem to talk about it, while in fact they nor more than seven members.” This only talk about their delegate, their memwas in 1778, when the States as such ber, and the like, by way of personal were truly represented by their delegates designation. in Congress; for as yet the representa Be this, however, as it may, the officers, tive character of federal officers was sim- whether of the Union or the States, ply diplomatic, and had nothing to do represent, in philosophical truth of relawith the people, which explains the tionship, just ihose for whom they act. A casualty of General Hamilton's writing in foreign envoy represents his gorernment; the manner above mentioned, that is, ac not the President and Senate who appoint cording to the idiom of the time, though in him, but his government at large. He is reference to the new Constitution which he a diplomatic representative. A member was recommending for adoption, and of of Congress represents the people; not which one of the grand advantages was to this or that petty district, or State legisbe, that it would bring about a change in the lature, but the people at large. This is principle of federal representation-mak- government representation ; a novelty of ing it popular, and putting an end entirely modern times, of which the ancients had to its local bearing. Little wonder that no adequate conception. May our own an idiom thus honored should have been country grow in knowledge on the subafterwards used, as it has from time to ject! time been, in a way no longer strictly jus Unfortunately, words without knowltified by facts ; as, for instance, in a con- edge are too rife among us. The miserastitutional amendment in Massachusetts, ble quillet of State constituency is an as late as 1837, it is said, “any town hav- instance. And this is only one of a sistering less than three hundred ratable polls hood of quillets which it seems the lishall be represented thus," &c.; and again, cense of a certain style of political harlotry in 1838, it was declared in the present can never let alone. The doctrine of constitution of Pennsylvania,“that no

“that no “confederacy,the doctrine of " distinct new county should be entitled to a sepa- sovereignties," the doctrine that the States rate representation until,” &c.; as if towns are the constituents" of all things, the and counties were ever the peculiar ob- doctrine of "the right of instruction” for

invading the liberty of public men, the is exclusively to them that the visitatorial doctrine of free sectional arbitrament as to power belongs of calling him to account. the obligation of federal luws--all these It is true, our federal senators have are children of one family and go together; their appointments from the State legisand the seeming design of the encourage- latures. But they are not the servants of ment bestowed upon them is to enfeeble those legislatures, any more than memthe Union, and to make its authority con-bers of the lower house of Congress are temptible, so that when the day of seces servants of the particular local districts sion comes, it may neither be a task nor a that elect them. The rule of service and crime to cut loose from it.

of representation is not settled by forms of I trust it has been made sufficiently constituency; it has absolutely nothing to evident that_these wild thoughts are do with them. Members of Congress groundless. But even though it were ad- have as broad a field of duty as the chief mitted that the general government is of magistrate himself; their representative State origin, and has also its living organi- character is as large as his. How bezation from the same source, how could it littling to hold them up as tools of the follow from such premises that the officers particular district electors. On that prinof that government represent the States, ciple, the federal judges would be tools of or are in any way amenable to their visita- the President and Senate; federal senation and control

tors tools, not of the States, but of their Try it. The actual frame of the gov- respective legislative houses ; and even ernment is a given fact. Is any such pre- the President, instead of serving and rogative of visitation reserved by it to the representing a great people, would be a local jurisdictions ? No pretense of that. servant of servants, the creature and the What matters it then to the question in slave of a packed electoral board, themhand, whether this giren fact is of one selves in turn creatures and slaves of terorigin or another, or whether the func- ritorial electors. Forms of appointment tionaries it provides for are appointed vary continually all over the country. by legislative houses, by district voting, Does the rule of representation vary with or by general ticket? Can the essential them? Sometimes the immediate “ conimport of the fact be made dependent on stituents” are the people; sometimes the these formal circumstances ?

two houses of a legislature; sometimes One thing is certain; if the Constitution one house, on the nomination of another; was not made by the people, it was at sometimes one or both, upon the governleast made for them ; they are in every or's nomination ; sometimes the governor view the intended beneficiaries of the sys- and a special council; sometimes he alone. tem. No man doubts it. Of course the Does the representative weathercock play relation of duty and responsibility into in all these winds ? which the administrators of the govern

It is both natural and fit that federal ment are brought by their official trust, is officers, coming from particular places, a relation of duty and responsibility to the whose interests they are well acquainted people only. The States, as such, have with, should keep those interests in mind, no concern in it; and if this be so, the in- and act as conduits of intelligence to conference is inevitable that those adminis- vey the knowledge of them, as occasion trators represent the people, and them only. calls, to the council-board of national deDuty and representation always | liberation and business. This is the way of one bearing, and go hand-in-hand. to put every subject in full light before There can be no exception to the rule. the government, and thus to secure the Whom, for all beneficial purposes, does benefit of a rule of representation that every private trustee represent ? And binds all the great agencies of public life whether his duty have been cast upon him to labor for the country as a whole, and by the act of a living grantor, by a dead as a whole to treat its parts according to man's will, by a surrogate's letter, or the their relative value in the general scale. decretal order of an equity court, is no- Partiality, whether personal or territorial, thing to the purpose. He represents, is a crime against that rule. The people beneficially, the parties he acts for, and it at large are the proprietaries of the sys


tem. The people at large are its visi- special economies changes of course with tors.

every change made in either. That they I conclude, finally, that the results of were well balanced at the first is highly the argument may be recapitulated thus- probable. But how they might have

1. That the polity instituted by the worked together under that arrangement, transaction of ’87 was a true government, had it been left undisturbed, is now an having direct coercive authority over in- inscrutable problem. dividuals.

In fact the subject here resolves itself 2. That the powers of this government into a new topic, and we pass insensibly were chiefly of the kind called national, from the quantum to the jurisdictional and the Constitution was, in that respect, distribution of government power; a topic a consolidated union of the particular of great magnitude, but fortunately inStates.

volving small difference of opinion among 3. That as to matters of local policy intelligent men, and therefore easily disand order, the separate organism of the patched. States was fully preserved and adopted, This distribution, as made by our priwith their appropriate powers and laws, mary lawgivers (and still substantially unqualified, untouched, save in a few adhered to by the country) was partly particulars of necessary limitation.

functionary, partly territorial. 4. That alike in the federal and State In point of function it divided power economies, though various modes of ap- into three branches ; legislative, politicalpointment were resorted to for filling dif- executire and judiciul ; each to be kept as ferent offices, the trusts of those offices were distinctly vested as possible from the rest. entirely popular, the rule of representalion The early State constitutions insisted great, and accountabilily entirely popular. ly on this; a great deal more than had

Thus the broad outline structure of the been done before in any known governgovernment is fairly before us; and the ment economy. The principle was iminquiry whether it has been framed with portant as inducing a very useful division proper strength and constitutional energy of administrative labor; and it was doubly to fulfil the hopes of its founders and the important in a conservative point of view, country, returns upon our notice.

to keep power advised of its own legitiof the entire system, federal and local mate pathway, to facilitate the popular combined, it must be safe to say, that it inspection of it, to keep it from accumulahad power enough for every purpose, ting unduly in particular hands, to check since the Union and the States together it, guard it, hem it in, and make the maformed a perfect nation, both for outward næuvres of ambition different. The legisand internal action, to the last tittle of na lature were neither to interpret nor enforce tional competency. And after sixty years the laws; the President, neither to make of trial, no discovery has been made of nor interpret them; the judges, to interanything desirable to be done by public pret only, and apply. And what, in this authority, which there has not been pub- respect, the federal government was in lic authority somewhere adequate to do. large portrait, the State governments were

But when we come to look at the re the same in miniature. Power was to be lation of the head government to the mem- separated everywhere into its elements; bers, and to weigh the central against the thus avoiding the dangerous ferment of scattered powers of the system, the sub compounded masses. In legislation, it is ject takes a delicate aspect and is harder true, a qualified veto was reserved to the to deal with. Nor is it important to at- chief magistrate, not that he might mix tenipt exactness here, forasmuch as the himself up at pleasure with the business numerous innovations that have been al- of the legislative houses; not that he ready made in the State constitutions might undertake to forestall their action by under the question of the original suffi- lecturing messages, and then send every ciency or insufficiency of federal strength bill back that did not suit his fancy or his as compared with those constitutions, is a partisan feelings. On the contrary, it was matter purely speculative and conjectural. every way an extraordinary power, The relative condition of the general and was only to be used upon occasions equally


extraordinary. Necessity must constrain of local jurisdictions ; superintending the the use of it; or otherwise it must lie minor corporations of the counties, towndormant as the crown veto has done in ships, cities, villages, within their respecEngland for the last hundred years and tive borders, and administrating other and more. And though, in reference to the larger interests of untold variety that want treaty laws and relations of the country, aids beyond the ability of those corporathe federal President and Senate are tions to furnish. With the number thirty placed in a peculiar attitude, which seems for a multiplier, and the entire business of in one view inconsistent with the general a State for the multiplicand, we might jurisdictional policy of the system, there contrive to form an estimate of the relief are reasons that at once explain the afforded by all our local jurisdictions to anomaly, and show it to be harmless. the head government of the country. The President is the organ of communica- Without some regular process of inquiry tion with foreign governments, and is the thing is inconceivable. always to be regarded as best informed of And let it be borne in mind, business what is proper to be done with them. This done is an exponent of power; and in proexplains the anomaly of his participation in portion as that is drawn off from the the treaty-making power. And then the centre so is this, and with it the food that foreign bearing of that power places it be- ambition feeds upon, or at least hungers yond the verge of ordinary ambition, and after and is stimulated by. The federal shows his concern in it to be one from government has thus a clean council-board which there is consequently nothing to for the transaction of its own peculiar affear.

fairs, that concern the nation at large. Territorial jurisdiction is the next relief For petty demagogues, instead of one principle that has been resorted to in the centre of gathering we have thirty. And matter of an otherwise too crowded and these wretched creatures are near enough confused central authority. It is a kind to the people to be seen and watched; of safety-valve to the federal boiler; a while the more dangerous sharks of deep thing not new in our system, but made water can also be the better observed, use of in it to an extent of which there is even at the distance of Washington, from no other known example; nor can the ad- the circumstance that the small fry are vantages of the principle, applied as we scattered, and the monsters show at full apply it, be easily overrated. It is un length. At any rate, the distribution of doubtedly to us a life principle. Other power and business here referred to is countries know nothing practically of its real; and it constitutes one of the most American utility. England has her shires remarkable, most characteristic, most moand townships, but no larger subdivisions. mentous features of our general frameAnd being territorially a small country, work. the arrangement may be adequate to her The relative dignity of the State govoccasions, especially as her government, ernments, as compared with the Union, is from its very nature, can bear, and pro- an idle question, which some political bably requires, a more centralizing ten- idlers have occasionally mooted. A condency of things than would be safe with test of pride between the human body us. Our policy is different.

We are

and its members were about as reasonjealous of centralized power.

“ Divide able. and conquer,” is a good military maxim. But the difference of scope and office “Divide and render harmless," is a fair between the federal and state systems is version of it in this connection. To the too plain to go unnoticed. Let not the small districts common to us and Eng-truth of the matter of fact be deemed an land for the dispatch of small affairs, we offense. The general government is in have added States—a name elsewhere absolute terms a sovereign State ; it has equivalent to nations — covering areas, national power. This is no longer prediin our case, over which national sover cable of the local organizations. The eigns might be proud to reign. These officers of that government act for and States, indeed, are vested with immense represent the whole people of the republic; masses of sovereign power in the way, while those of the State systems serve and

« ՆախորդըՇարունակել »