Page images

invading the liberty of public men, the doctrine of free sectional arbitrament as to the obligation of federal laws-all these are children of one family and go together; and the seeming design of the encouragement bestowed upon them is to enfeeble the Union, and to make its authority contemptible, so that when the day of secession comes, it may neither be a task nor a crime to cut loose from it.

I trust it has been made sufficiently evident that these wild thoughts are groundless. But even though it were admitted that the general government is of State origin, and has also its living organization from the same source, how could it follow from such premises that the officers of that government represent the States, or are in any way amenable to their visitation and control?

Try it. The actual frame of the government is a given fact. Is any such prerogative of visitation reserved by it to the local jurisdictions? No pretense of that. What matters it then to the question in hand, whether this given fact is of one origin or another, or whether the functionaries it provides for are appointed by legislative houses, by district voting, or by general ticket? Can the essential import of the fact be made dependent on these formal circumstances?

One thing is certain; if the Constitution was not made by the people, it was at least made for them; they are in every view the intended beneficiaries of the system. No man doubts it. Of course the relation of duty and responsibility into which the administrators of the government are brought by their official trust, is a relation of duty and responsibility to the people only. The States, as such, have no concern in it; and if this be so, the inference is inevitable that those administrators represent the people, and them only. Duty and representation are always of one bearing, and go hand-in-hand. There can be no exception to the rule. Whom, for all beneficial purposes, does every private trustee represent ? And whether his duty have been cast upon him by the act of a living grantor, by a dead man's will, by a surrogate's letter, or the decretal order of an equity court, is nothing to the purpose. He represents, beneficially, the parties he acts for, and it

is exclusively to them that the visitatorial power belongs of calling him to account.

It is true, our federal senators have their appointments from the State legislatures. But they are not the servants of those legislatures, any more than members of the lower house of Congress are servants of the particular local districts that elect them. The rule of service and of representation is not settled by forms of constituency; it has absolutely nothing to do with them. Members of Congress have as broad a field of duty as the chief magistrate himself; their representative character is as large as his. How belittling to hold them up as tools of the particular district electors. On that principle, the federal judges would be tools of the President and Senate; federal senators tools, not of the States, but of their respective legislative houses; and even the President, instead of serving and representing a great people, would be a servant of servants, the creature and the slave of a packed electoral board, themselves in turn creatures and slaves of territorial electors. Forms of appointment vary continually all over the country. Does the rule of representation vary with them? Sometimes the immediate " constituents" are the people; sometimes the two houses of a legislature; sometimes one house, on the nomination of another; sometimes one or both, upon the governor's nomination; sometimes the governor and a special council; sometimes he alone. Does the representative weathercock play in all these winds?

It is both natural and fit that federal officers, coming from particular places, whose interests they are well acquainted with, should keep those interests in mind, and act as conduits of intelligence to convey the knowledge of them, as occasion calls, to the council-board of national deliberation and business. This is the way to put every subject in full light before the government, and thus to secure the benefit of a rule of representation that binds all the great agencies of public life to labor for the country as a whole, and as a whole to treat its parts according to their relative value in the general scale. Partiality, whether personal or territorial, is a crime against that rule. The people at large are the proprietaries of the sys

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


I conclude, finally, that the results of the argument may be recapitulated thus

1. That the polity instituted by the transaction of '87 was a true government, having direct coercive authority over individuals.

2. That the powers of this government were chiefly of the kind called national, and the Constitution was, in that respect, a consolidated union of the particular States.

3. That as to matters of local policy and order, the separate organism of the States was fully preserved and adopted, with their appropriate powers and laws, unqualified, untouched, save in a few particulars of necessary limitation.

4. That alike in the federal and State economies, though various modes of appointment were resorted to for filling different offices, the trusts of those offices were entirely popular, the rule of representation and accountability entirely popular.

Thus the broad outline structure of the government is fairly before us; and the inquiry whether it has been framed with proper strength and constitutional energy to fulfil the hopes of its founders and the country, returns upon our notice.

Of the entire system, federal and local combined, it must be safe to say, that it had power enough for every purpose, since the Union and the States together formed a perfect nation, both for outward and internal action, to the last tittle of national competency. And after sixty years of trial, no discovery has been made of anything desirable to be done by public authority, which there has not been public authority somewhere adequate to do.

every change made in either. That they were well balanced at the first is highly probable. But how they might have worked together under that arrangement, had it been left undisturbed, is now an inscrutable problem.

In fact the subject here resolves itself into a new topic, and we pass insensibly from the quantum to the jurisdictional distribution of government power; a topic of great magnitude, but fortunately involving small difference of opinion among intelligent men, and therefore easily dispatched.

This distribution, as made by our primary lawgivers (and still substantially adhered to by the country) was partly functionary, partly territorial.

In point of function it divided power into three branches; legislative, politicalexecutive and judicial; each to be kept as distinctly vested as possible from the rest. The early State constitutions insisted greatly on this; a great deal more than had been done before in any known government economy. The principle was important as inducing a very useful division of administrative labor; and it was doubly important in a conservative point of view, to keep power advised of its own legitimate pathway, to facilitate the popular inspection of it, to keep it from accumulating unduly in particular hands, to check it, guard it, hem it in, and make the manoeuvres of ambition different. The legislature were neither to interpret nor enforce the laws; the President, neither to make nor interpret them; the judges, to interpret only, and apply. And what, in this respect, the federal government was in large portrait, the State governments were the same in miniature. Power was to be

But when we come to look at the relation of the head government to the mem-separated everywhere into its elements; bers, and to weigh the central against the scattered powers of the system, the subject takes a delicate aspect and is harder to deal with. Nor is it important to attempt exactness here, forasmuch as the numerous innovations that have been already made in the State constitutions under the question of the original sufficiency or insufficiency of federal strength as compared with those constitutions, is a matter purely speculative and conjectural. The relative condition of the general and

thus avoiding the dangerous ferment of compounded masses. In legislation, it is true, a qualified veto was reserved to the chief magistrate, not that he might mix himself up at pleasure with the business of the legislative houses; not that he might undertake to forestall their action by lecturing messages, and then send every bill back that did not suit his fancy or his partisan feelings. On the contrary, it was every way an extraordinary power, 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 dormant as the crown veto has done in England for the last hundred years and more. And though, in reference to the treaty laws and relations of the country, the federal President and Senate are placed in a peculiar attitude, which seems in one view inconsistent with the general jurisdictional policy of the system, there are reasons that at once explain the anomaly, and show it to be harmless. The President is the organ of communication with foreign governments, and is always to be regarded as best informed of what is proper to be done with them. This explains the anomaly of his participation in the treaty-making power. And then the foreign bearing of that power places it beyond the verge of ordinary ambition, and shows his concern in it to be one from which there is consequently nothing to fear.

Territorial jurisdiction is the next relief principle that has been resorted to in the matter of an otherwise too crowded and confused central authority. It is a kind of safety-valve to the federal boiler; a thing not new in our system, but made use of in it to an extent of which there is no other known example; nor can the advantages of the principle, applied as we apply it, be easily overrated. It is undoubtedly to us a life principle. Other countries know nothing practically of its American utility. England has her shires and townships, but no larger subdivisions. And being territorially a small country, the arrangement may be adequate to her occasions, especially as her government, from its very nature, can bear, and probably requires, a more centralizing tendency of things than would be safe with


minor corporations of the counties, townships, cities, villages, within their respective borders, and administrating other and larger interests of untold variety that want aids beyond the ability of those corporations to furnish. With the number thirty for a multiplier, and the entire business of a State for the multiplicand, we might contrive to form an estimate of the relief afforded by all our local jurisdictions to the head government of the country. Without some regular process of inquiry the thing is inconceivable.

And let it be borne in mind, business done is an exponent of power; and in proportion as that is drawn off from the centre so is this, and with it the food that ambition feeds upon, or at least hungers after and is stimulated by. The federal government has thus a clean council-board for the transaction of its own peculiar affairs, that concern the nation at large. For petty demagogues, instead of one centre of gathering we have thirty. And these wretched creatures are near enough to the people to be seen and watched; while the more dangerous sharks of deep water can also be the better observed, even at the distance of Washington, from the circumstance that the small fry are scattered, and the monsters show at full length. At any rate, the distribution of power and business here referred to is real; and it constitutes one of the most remarkable, most characteristic, most momentous features of our general framework.

The relative dignity of the State governments, as compared with the Union, is an idle question, which some political idlers have occasionally mooted. A contest of pride between the human body and its members were about as reason

Our policy is different. We are jealous of centralized power. "Divide able. and conquer," is a good military maxim. "Divide and render harmless," is a fair version of it in this connection. To the small districts common to us and England for the dispatch of small affairs, we have added States-a name elsewhere equivalent to nations-covering areas, in our case, over which national sovereigns might be proud to reign. These States, indeed, are vested with immense masses of sovereign power in the way

But the difference of scope and office between the federal and state systems is too plain to go unnoticed. Let not the truth of the matter of fact be deemed an offense. The general government is in absolute terms a sovereign State; it has national power. This is no longer predicable of the local organizations. The officers of that government act for and represent the whole people of the republic; while those of the State systems serve and

represent the people of their respective | have they not done it for their own adStates only. The laws of the two economies differ in like manner. They differ also in settled declarative rank; for the Constitution, treaties and statutes of the United States are, upon the very highest evidence, the supreme laws of the land. In which respect the laws of the States must be subordinate. Mr. Jefferson regarded the States themselves as "subordinate governments," and so called them.* I am not in the habit of consulting this gentleman's political philosophy, but his views upon the present point are too distinctly stated in some of his letters to leave me an apology for passing them by entirely. We should marshal our government," he says in one of these letters, "into 1st, the general federal republic, for concerns foreign and federal; 2d, that of the States, for what relates to its own' citizens exclusively; 3d, the county republics, for the duties and concerns of the counties; and 4th, the ward republics, for the small and yet numerous and interesting concerns of the neighborhood." According to him, the question of subordination is quite unembarrassed. Let the States enjoy their powers to the uttermost; but let not their politicians be foolish on the subject.


A good deal depends upon the rule of construction to be applied to the special grants of power by which the officers of the federal economy have been endowed. Some will have it that they must be taken strictly. This, however, is a comparatively modern notion, and of party origin. The founders and their immediate successors thought otherwise. It is true, the powers not granted are retained by the people. And there needed no record of the fact to show it. But how does that affect the meaning of the actual grants? And why are these to be narrowed down to limits less than a fair liberal criticism would assign to them? Is it because the people are the grantors? Nay, but for whose benefit? Admit the people have raised the trusts of all federal officers;

[blocks in formation]

vantage exclusively? And so to every beneficial purpose, they are grantees also. And then the supposed reason, on the one hand, for interpreting their grants with rigor, is counterbalanced by a reason of equal force on the other, for a liberal and generous construction of them, to the end that the people's settlement thus made upon themselves, (the language is professional but descriptive and true,) may not be disappointed. The principle is one of equitable common law. And it is the principle which ought to govern in the case. Take an instance; as whether the general government, under a power granted in broad terms for regulating commerce, can by implication set up a banking institution. A very rigid construction might bar the means, however desirable the end; whereas, a liberal one implies the power of the means for the end's sake. And so of other particulars. Ought not powers granted by the people in trust for a service of their own interests, to be made the most of that the terms of grant allow, for the advancement of those interests? Common sense answers yes. The common law answers yes. And this, in the pure virgin period of our politics, was the acknowledged rule of the government.


In a word, the government was then regarded not only as a whole with separately organized parts, but a whole of which the general and particular economies were in harmony with each other; being alike popular in design, alike entitled to respect and favor in the construction of the powers assigned to them. days of feud in the political family of head and members, had not yet come; the days of stinting rigor towards the powers of the head, and of comparative indulgence to those of the members, were not foreseen, were not expected to come. The federal jurisdiction was indeed limited in extent, because the interior administration of the country was in great measure withheld from it; and so was the jurisdiction of the States limited, because the entirety of "foreign and federal" affairs (to use a phrase of Mr. Jefferson's) was placed beyond its reach; but neither the one jurisdiction nor the other was the less esteemed for its limit's sake, nor were these lim

its straitened at all, on either hand, by | £500, half freehold, and a professor of narrow-minded jealousy or fear. Every- the Protestant religion; that senators where the object in view was public, pop- (who must be thirty years of age) should ular, beneficial. Everywhere the rule of in- also be inhabitants of seven years' standterpretation was liberalized by that object. ing, have freeholds of £200 value, and be As, therefore, the agencies of public of the Protestant religion; and that replife were not to be throttled, in order to resentatives in the lower house of the legkeeping them out of mischief, we may islature, should be residents of two years' now advance a step further and inquire as standing, have property equal to £100 in to the measures actually resorted to for value, half freehold, and profess the same securing that end. religion.

And here we approach those smaller details of the system which, however material to the plan and policy of its founders, and however anxiously adjusted by them in the first instance, have either been looked upon by later lawgivers as too insignificant for a question, when the spirit of meddling was abroad, or too clearly amiss to leave that spirit unprovoked; for they have been the chief subject of what are termed our modern constitutional reforms.

They belong mainly, it will be seen, to the state economies, (of which at the time the Union was formed there were thirteen,) and relate, first, to the character and circumstances by which it was supposed that candidates for office ought to be distinguished; secondly, to the mode of appointment deemed most likely to secure a fair result; thirdly, to the qualifications of electors where the election was popular; fourthly, to the term and tenure of office when attained; and lastly, to some further means of safety, calculated either to fortify the personal virtue and fidelity of the functionary in the execution of his trust, or to guard against evil from his misconduct in it.

Two of the primary States (Connecticut and Rhode Island) having continued to act under their colonial charter until long after the final settlement of our national polity, the evidence of what the sentiment of the country was in general, upon matters of conservative policy such as are here referred to, must be taken from the early constitutions of the other eleven.

1. I begin with the conditions of eligibility to the higher stations of the State governments as shown by that evidence.

The first regular constitution of New Hampshire, (adopted in 1783,) required that the governor, to be properly eligible as such, should be an inhabitant of seven years' standing, possessed of an estate of

By the constitution of Massachusetts (1780) the governor was required to have a seven years' residence, and a freehold of £1000; a senator's residence must be five years at least, with a freehold of £300, or a personal estate of £600; a representative in the Assembly, with one year's residence, must have a freehold of £100, or a £200 taxable estate of some kind; and governor, senator, and representative must all make oath that they were believers in Christianity.

The constitution of New York (1777) required the governor to be of three years' residence, and "a wise and discreet freeholder;" the senators were also to be "freeholders chosen out of the body of the freeholders." Nothing special as to the other house.

In New Jersey, by the constitution of 1776, the Senate (then called "the Legislative Council") was to consist of persons who had been for one year residents, "and worth at least £1000 proclamation money;" members of Assembly with the same length of residence, must be "worth £500 proclamation money."

In Pennsylvania (1776) it was provided that members of Assembly should be men who had resided in their respective counties for two years, and that they should make oath to their belief in God's government, and in the divine authenticity of the Holy Scriptures. No similar provision as to other branches of the government, and no property qualification beyond that of having paid taxes. There was, however, to be in this State a Council of Censors, chosen every seven years, to inquire whether the Constitution had been violated, and whether either the legislative or executive branch of the government had been guilty of usurpation; with power also, if need be, to call a convention for reform,

« ՆախորդըՇարունակել »