Chapter IX: The Constitution of the United States (2)

The above are lists or catalogues of the powers which Congress has, and of the powers which Congress has not; of what Congress may do, and of what Congress may not do; and having given them thus seriatim, I may here perhaps be best enabled to say a few words as to the suspension of the privilege of the writ of habeas corpus in the United States. It is generally known that this privilege has been suspended during the existence of the present rebellion very many times; that this has been done by the executive, and not by Congress; and that it is maintained by the executive, and by those who defend the conduct of the now acting executive of the United States, that the power of suspending the writ has been given by the constitution to the President, and not to Congress. I confess that I cannot understand how any man, familiar either with the wording or with the spirit of the constitution should hold such an argument. To me it appears manifest that the executive, in suspending the privilege of the writ without the authority of Congress, has committed a breach of the constitution. Were the case one referring to our British constitution, a plain man, knowing little of Parliamentary usage, and nothing of law lore, would probably feel some hesitation in expressing any decided opinion on such a subject, seeing that our constitution is unwritten. But the intention has been that every citizen of the United States should know and understand the rules under which he is to live,--and he that runs may read.

As this matter has been argued by Mr. Horace Binney, a lawyer of Philadelphia, much trusted, of very great and of deserved eminence throughout the States, in a pamphlet in which he defends the suspension of the privilege of the writ by the President, I will take the position of the question as summed up by him in his last page, and compare it with that clause in the constitution by which the suspension of the privilege under certain circumstances is decreed; and to enable me to do this I will, in the first place, quote the words of the clause in question:--

"The privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it." It is the second clause of that section which states what Congress shall not do.

Mr. Binney argues as follows:--"The conclusion of the whole matter is this: that the constitution itself is the law of the privilege, and of the exception to it; that the exception is expressed in the constitution, and that the constitution gives effect to the act of suspension when the conditions occur; that the conditions consist of two matters of fact,--one a naked matter of fact, and the other a matter-of-fact conclusion from facts, that is to say, rebellion and the public danger, or the requirement of public safety." By these words Mr. Binney intends to imply that the constitution itself gave the privilege of the writ of habeas corpus, and itself prescribes the taking away of that privilege under certain circumstances. But this is not so. The constitution does not prescribe the suspension of the privilege of the writ under any circumstances. It says that it shall not be suspended except under certain circumstances. Mr. Binney's argument, if I understand it, then goes on as follows. As the constitution prescribes the circumstances under which the privilege of the writ shall be suspended, the one circumstance being the naked matter-of-fact rebellion, and the other circumstance the public safety supposed to have been endangered by such rebellion,--which Mr. Binney calls a matter-of-fact conclusion from facts, the constitution must be presumed itself to suspend the privilege of the writ. Whether the President or Congress be the agent of the constitution in this suspension is not matter of moment. Either can only be an agent, and as Congress cannot act executively, whereas the President must ultimately be charged with the executive administration of the order for that suspension, which has in fact been issued by the constitution itself, therefore the power of exercising the suspension of the writ may properly be presumed to be in the hands of the President, and not to be in the hands of Congress.

If I follow Mr. Binney's argument, it amounts to so much. But it seems to me that Mr. Binney is wrong in his premises, and wrong in his conclusion. The article of the constitution in question does not define the conditions under which the privilege of the writ shall be suspended. It simply states that this privilege shall never be suspended, except under certain conditions. It shall not be suspended unless when the public safety may require such suspension on account of rebellion or invasion. Rebellion or invasion is not necessarily to produce such suspension. There is indeed no naked matter of fact to guide either President or Congress in the matter, and therefore I say that Mr. Binney is wrong in his premises. Rebellion or invasion might occur twenty times over, and might even endanger the public safety, without justifying the suspension of the privilege of the writ under the constitution. I say also that Mr. Binney is wrong in his conclusion. The public safety must require the suspension before the suspension can be justified, and such requirement must be a matter for judgment, and for the exercise of discretion. Whether or no there shall be any suspension is a matter for deliberation,--not one simply for executive action, as though it were already ordered. There is no matter-of-fact conclusion from facts. Should invasion or rebellion occur, and should the public safety, in consequence of such rebellion or invasion, require the suspension of the privilege of the writ, then, and only then, may the privilege be suspended. But to whom is the power, or rather the duty, of exercising this discretion delegated? Mr. Binney says that "there is no express delegation of the power in the constitution." I maintain that Mr. Binney is again wrong, and that the constitution does expressly delegate the power, not to the President, but to Congress. This is done so clearly, to my mind, that I cannot understand the misunderstanding which has existed in the States upon the subject. The first article of the constitution treats "of the legislature." The second article treats "of the executive." The third treats "of the judiciary." After that there are certain "miscellaneous articles," so called. The eighth section of the first article gives, as I have said before, a list of things which the legislature or Congress shall do. The ninth section gives a list of things which the legislature or Congress shall not do. The second item in this list is the prohibition of any suspension of the privilege of the writ of habeas corpus, except under certain circumstances. This prohibition is therefore expressly placed upon Congress, and this prohibition contains the only authority under which the privilege can be constitutionally suspended. Then comes the article on the executive, which defines the powers that the President shall exercise. In that article there is no word referring to the suspension of the privilege of the writ. He that runs may read.

I say, therefore, that Mr. Lincoln's Government has committed a breach of the constitution in taking upon itself to suspend the privilege;--a breach against the letter of the constitution. It has assumed a power which the constitution has not given it,--which, indeed, the constitution, by placing it in the hands of another body, has manifestly declined to put into the hands of the executive; and it has also committed a breach against the spirit of the constitution. The chief purport of the constitution is to guard the liberties of the people, and to confide to a deliberative body the consideration of all circumstances by which those liberties may be affected. The President shall command the army; but Congress shall raise and support the army. Congress shall declare war. Congress shall coin money. Congress, by one of its bodies, shall sanction treaties. Congress shall establish such law courts as are not established by the constitution. Under no circumstances is the President to decree what shall be done. But he is to do those things which the constitution has decreed or which Congress shall decree. It is monstrous to suppose that power over the privilege of the writ of habeas corpus would, among such a people, and under such a constitution, be given without limit to the chief officer, the only condition being that there should be some rebellion. Such rebellion might be in Utah territory; or some trouble in the uttermost bounds of Texas would suffice. Any invasion, such as an inroad by the savages of Old Mexico upon New Mexico, would justify an arbitrary President in robbing all the people of all the States of their liberties! A squabble on the borders of Canada would put such a power into the hands of the President for four years; or the presence of an English frigate in the St. Juan channel might be held to do so. I say that such a theory is monstrous.

And the effect of this breach of the constitution at the present day has been very disastrous. It has taught those who have not been close observers of the American struggle to believe that, after all, the Americans are indifferent as to their liberties. Such pranks have been played before high heaven by men utterly unfitted for the use of great power, as have scared all the nations. Mr. Lincoln, the President by whom this unconstitutional act has been done, apparently delegated his assumed authority to his minister, Mr. Seward. Mr. Seward has revelled in the privilege of unrestrained arrests, and has locked men up with reason and without. He has instituted passports and surveillance; and placed himself at the head of an omnipresent police system with all the gusto of a Fouché, though luckily without a Fouché's craft or cunning. The time will probably come when Mr. Seward must pay for this,--not with his life or liberty, but with his reputation and political name. But in the mean time his lettres de cachet have run everywhere through the States. The pranks which he played were absurd, and the arrests which he made were grievous. After a while, when it became manifest that Mr. Seward had not found a way to success, when it was seen that he had inaugurated no great mode of putting down rebellion, he apparently lost his power in the cabinet. The arrests ceased, the passports were discontinued, and the prison-doors were gradually opened. Mr. Seward was deposed, not from the cabinet, but from the premiership of the cabinet. The suspension of the privilege of the writ of habeas corpus was not countermanded, but the operation of the suspension was allowed to become less and less onerous; and now, in April, 1862, within a year of the commencement of the suspension, it has, I think, nearly died out. The object in hand now is rather that of getting rid of political prisoners, than of taking others.

This assumption by the government of an unconstitutional power has, as I have said, taught many lookers-on to think that the Americans are indifferent to their liberties. I myself do not believe that such a conclusion would be just. During the present crisis the strong feeling of the people--that feeling which for the moment has been dominant--has been one in favour of the government as against rebellion. There has been a passionate resolution to support the nationality of the nation. Men have felt that they must make individual sacrifices, and that such sacrifices must include a temporary suspension of some of their constitutional rights. But I think that this temporary suspension is already regarded with jealous eyes;--with an increasing jealousy which will have created a reaction against such policy as that which Mr. Seward has attempted, long before the close of Mr. Lincoln's Presidency. I know that it is wrong in a writer to commit himself to prophecies, but I find it impossible to write upon this subject without doing so. As I must express a surmise on this subject, I venture to prophesy that the Americans of the States will soon show that they are not indifferent to the suspension of the privilege of the writ of habeas corpus. On that matter of the illegality of the suspension by the President I feel in my own mind that there is no doubt.

The second article of the constitution treats of the executive, and is very short. It places the whole executive power in the hands of the President, and explains with more detail the mode in which the President shall be chosen, than the manner after which the duties shall be performed. The first section states that the executive shall be vested in a President, who shall hold his office for four years. With him shall be chosen a Vice-President. I may here explain that the Vice-President, as such, has no power either political or administrative. He is, ex officio, the speaker of the Senate; and should the President die, or be by other cause rendered unable to act as President, the Vice-President becomes President either for the remainder of the Presidential term or for the period of the President's temporary absence. Twice since the constitution was written, the President has died and the Vice-President has taken his place. No President has vacated his position, even for a period, through any cause other than death.

Then come the rules under which the President and Vice-President shall be elected,--with reference to which there has been an amendment of the constitution subsequent to the fourth presidential election. This was found to be necessary by the circumstances of the contest between John Adams, Thomas Jefferson, and Aaron Burr. It was then found that the complications in the method of election created by the original clause were all but unendurable, and the constitution was amended.

I will not describe in detail the present mode of election, as the doing so would be tedious and unnecessary. Two facts I wish, however, to make specially noticeable and clear. The first is, that the President of the United States is now chosen by universal suffrage; and the second is, that the constitution expressly intended that the President should not be chosen by universal suffrage, but by a body of men who should enjoy the confidence and fairly represent the will of the people. The framers of the constitution intended so to write the words, that the people themselves should have no more immediate concern in the nomination of the President than in that of the Senate. They intended to provide that the election should be made in a manner which may be described as thoroughly conservative. Those words, however, have been inefficient for their purpose. They have not been violated. But the spirit has been violated, while the words have been held sacred,--and the Presidential elections are now conducted on the widest principles of universal suffrage. They are essentially democratic.

The arrangement, as written in the constitution, is that each State shall appoint a body of electors equal in number to the senators and representatives sent by that State to Congress, and that thus a body or college of electors shall be formed equal in number to the two joint Houses of Congress, by which the President shall be elected. No member of Congress, however, can be appointed an elector. Thus New York, with thirty-three representatives in the Lower House, would name thirty-five electors; and Rhode Island, with two members in the Lower House, would name four electors;--in each case two being added for the two senators.

It may perhaps be doubted whether this theory of an election by electors has ever been truly carried out. It was probably the case even at the election of the first Presidents after Washington, that the electors were pledged in some informal way as to the candidate for whom they should vote; but the very idea of an election by electors has been abandoned since the Presidency of General Jackson. According to the theory of the constitution the privilege and the duty of selecting a best man as President was to be delegated to certain best men chosen for that purpose. This was the intention of those who framed the constitution. It may, as I have said, be doubted whether this theory has ever availed for action; but since the days of Jackson it has been absolutely abandoned. The intention was sufficiently conservative. The electors to whom was to be confided this great trust, were to be chosen in their own States as each State might think fit. The use of universal suffrage for this purpose was neither enjoined nor forbidden in the separate States,--was neither treated as desirable or undesirable by the constitution. Each State was left to judge how it would elect its own electors. But the President himself was to be chosen by those electors and not by the people at large. The intention is sufficiently conservative, but the intention is not carried out.

The electors are still chosen by the different States in conformity with the bidding of the constitution. The constitution is exactly followed in all its biddings, as far as the wording of it is concerned; but the whole spirit of the document has been evaded in the favour of democracy, and universal suffrage in the Presidential elections has been adopted. The electors are still chosen, it is true; but they are only chosen as the mouthpiece of the people's choice, and not as the mind by which that choice shall be made. We have all heard of Americans voting for a ticket,--for the democratic ticket, or the republican ticket. All political voting in the States is now managed by tickets. As regards these Presidential elections, each party decides on a candidate. Even this primary decision is a matter of voting among the party itself. When Mr. Lincoln was nominated as its candidate by the republican party, the names of no less than thirteen candidates were submitted to the delegates who were sent to a convention at Chicago, assembled for the purpose of fixing upon a candidate. At that convention, Mr. Lincoln was chosen as the republican candidate; and in that convention was in fact fought the battle which was won in Mr. Lincoln's favour, although that convention was what we may call a private arrangement, wholly irrespective of any constitutional enactment. Mr. Lincoln was then proclaimed as the republican candidate, and all republicans were held as bound to support him. When the time came for the constitutional election of the electors, certain names were got together in each State as representing the republican interest. These names formed the republican ticket, and any man voting for them voted in fact for Lincoln. There were three other parties, each represented by a candidate, and each had its own ticket in the different States. It is not to be supposed that the supporters of Mr. Lincoln were very anxious about their ticket in Alabama, or those of Mr. Breckinridge as to theirs in Massachusetts. In Alabama, a democratic slave-ticket would of course prevail. In Massachusetts, a republican free-soil ticket would do so. But it may, I think, be seen that in this way the electors have in reality ceased to have any weight in the elections,--have in very truth ceased to have the exercise of any will whatever. They are mere names, and no more. Stat nominis umbra. The election of the President is made by universal suffrage, and not by a college of electors. The words as they are written are still obeyed; but the constitution in fact has been violated, for the spirit of it has been changed in its very essence.

The President must have been born a citizen of the United States. This is not necessary for the holder of any other office or for a senator or representative; he must be thirty-four years old at the time of his election.

His executive power is almost unbounded. He is much more powerful than any minister can be with us, and is subject to a much lighter responsibility. He may be impeached by the House of Representatives before the Senate, but that impeachment only goes to the removal from office and permanent disqualification for office. But in these days, as we all practically understand, responsibility does not mean the fear of any great punishment, but the necessity of accounting from day to day for public actions. A leading statesman has but slight dread of the axe, but is in hourly fear of his opponent's questions. The President of the United States is subject to no such questionings; and as he does not even require a majority in either House for the maintenance of his authority, his responsibility sits upon him very slightly. Seeing that Mr. Buchanan has escaped any punishment for maladministration, no President need fear the anger of the people.

The President is Commander-in-chief of the army and of the navy. He can grant pardons,--as regards all offences committed against the United States. He has no power to pardon an offence committed against the laws of any State, and as to which the culprit has been tried before the tribunals of that State. He can make treaties; but such treaties are not valid till they have been confirmed by two-thirds of the senators present in executive session. He appoints all ambassadors and other public officers,--but subject to the confirmation of the Senate. He can convene either or both Houses of Congress at irregular times, and under certain circumstances can adjourn them. His executive power is in fact almost unlimited; and this power is solely in his own hands, as the constitution knows nothing of the President's ministers. According to the constitution these officers are merely the heads of his bureaux. An Englishman, however, in considering the executive power of the President, and in making any comparison between that and the executive power of any officer or officers attached to the Crown in England, should always bear in mind that the President's power, and even authority, is confined to the Federal Government, and that he has none with reference to the individual States. Religion, education, the administration of the general laws which concern every man and woman, and the real de facto Government which comes home to every house;--these things are not in any way subject to the President of the United States.

His legislative power is also great. He has a veto upon all acts of Congress. This veto is by no means a dead letter, as is the veto of the Crown with us; but it is not absolute. The President, if he refuses his sanction to a bill sent up to him from Congress, returns it to that House in which it originated, with his objections in writing. If, after that, such bill shall again pass through both the Senate and the House of Representatives, receiving in each House the approvals of two-thirds of those present, then such bill becomes law without the President's sanction. Unless this be done the President's veto stops the bill. This veto has been frequently used, but no bill has yet been passed in opposition to it.

The third article of the constitution treats of the judiciary of the United States, but as I purpose to write a chapter devoted to the law courts and lawyers of the States, I need not here describe at length the enactments of the constitution on this head. It is ordained that all criminal trials, except in cases of impeachment, shall be by jury.

There are after this certain miscellaneous articles, some of which belong to the constitution as it stood at first, and others of which have been since added as amendments. A citizen of one State is to be a citizen of every State. Criminals from one State shall not be free from pursuit in other States. Then comes a very material enactment:--"No person held to service or labour in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour; but shall be delivered up on claim of the party to whom such service or labour may be due." In speaking of a person held to labour the constitution intends to speak of a slave, and the article amounts to a fugitive slave law. If a slave run away out of South Carolina and find his way into Massachusetts, Massachusetts shall deliver him up when called upon to do so by South Carolina. The words certainly are clear enough. But Massachusetts strongly objects to the delivery of such men when so desired. Such men she has delivered up, with many groanings and much inward perturbation of spirit. But it is understood, not in Massachusetts only, but in the free-soil States generally, that fugitive slaves shall not be delivered up by the ordinary action of the laws. There is a feeling strong as that which we entertain with reference to the rendition of slaves from Canada. With such a clause in the constitution as that, it is hardly too much to say that no free-soil State will consent to constitutional action. Were it expunged from the constitution, no slave State would consent to live under it. It is a point as to which the advocates of slavery and the enemies of slavery cannot be brought to act in union. But on this head I have already said what little I have to say.

New States may be admitted by Congress, but the bounds of no old State shall be altered without the consent of such State. Congress shall have power to rule and dispose of the territories and property of the United States. The United States guarantee every State a republican form of Government; but the constitution does not define that form of Government. An ordinary citizen of the United States, if asked, would probably say that it included that description of franchise which I have called universal suffrage. Such, however, was not the meaning of those who framed the constitution. The ordinary citizen would probably also say that it excluded the use of a king, though he would, I imagine, be able to give no good reason for saying so. I take a republican government to be that in which the care of the people is in the hands of the people. They may use an elected President, an hereditary king, or a chief magistrate called by any other name. But the magistrate, whatever be his name, must be the servant of the people and not their lord. He must act for them and at their bidding,--not they at his. If he do so, he is the chief officer of a republic;--as is our Queen with us.

The United States' constitution also guarantees to each State protection against invasion, and, if necessary, against domestic violence,--meaning, I presume, internal violence. The words domestic violence might seem to refer solely to slave insurrections; but such is not the meaning of the words. The free State of New York would be entitled to the assistance of the Federal Government in putting down internal violence, if unable to quell such violence by her own power.

This constitution, and the laws of the United States made in pursuance of it, are to be held as the supreme law of the land. The judges of every State are to be bound thereby, let the laws or separate constitution of such State say what they will to the contrary. Senators and others are to be bound by oath to support the constitution; but no religious test shall be required as a qualification to any office.

In the amendments to the constitution, it is enacted that Congress shall make no law as to the establishment of any religion, or prohibiting the free exercise thereof; and also that it shall not abridge the freedom of speech, or of the press, or of petition.--The Government, however, as is well known, has taken upon itself to abridge the freedom of the press.--The right of the people to bear arms shall not be infringed. Then follow various clauses intended for the security of the people in reference to the administration of the laws. They shall not be troubled by unreasonable searches. They shall not be made to answer for great offences except by indictment of a grand jury. They shall not be put twice in jeopardy for the same offence. They shall not be compelled to give evidence against themselves. Private property shall not be taken for public use without compensation. Accused persons in criminal proceedings shall be entitled to speedy and public trial. They shall be confronted with the witnesses against them, and shall have assistance of counsel. Suits in which the value controverted is above 20 dollars (£4) shall be tried before juries. Excessive bail shall not be required, nor cruel and unusual punishments inflicted. In all which enactments we see, I think, a close resemblance to those which have been time-honoured among ourselves.

The remaining amendments apply to the mode in which the President and Vice-President shall be elected, and of them I have already spoken.

The constitution is signed by Washington as President,--as President and Deputy from Virginia. It is signed by deputies from all the other States, except Rhode Island. Among the signatures is that of Alexander Hamilton, from New York; of Franklin, heading a crowd in Pennsylvania, in the capital of which State the convention was held; and that of James Madison, the future President, from Virginia.

In the beginning of this chapter I have spoken of the splendid results attained by those who drew up the constitution; and then, as though in opposition to the praise thus given to their work, I have insisted throughout the chapter both on the insufficiency of the constitution and on the breaches to which it has been subjected. I have declared my opinion that it is inefficient for some of its required purposes, and have said that, whether inefficient or efficient, it has been broken and in some degree abandoned. I maintain, however, that in this I have not contradicted myself. A boy, who declares his purpose of learning the Æneid by heart, will be held as being successful if at the end of the given period he can repeat eleven books out of the twelve. Nevertheless the reporter, in summing up the achievement, is bound to declare that that other book has not been learned. Under this constitution of which I have been speaking, the American people have achieved much material success and great political power. As a people they have been happy and prosperous. Their freedom has been secured to them, and for a period of seventy-five years they have lived and prospered without subjection to any form of tyranny. This in itself is much, and should, I think, be held as a preparation for greater things to follow. Such, I think, should be our opinion, although the nation is at the present burdened by so heavy a load of troubles. That any written constitution should serve its purposes and maintain its authority in a nation for a dozen years is in itself much for its framers. Where are now the constitutions which were written for France? But this constitution has so wound itself into the affections of the people, has become a mark for such reverence and love, has, after a trial of three quarters of a century, so recommended itself to the judgment of men, that the difficulty consists in touching it, not in keeping it. Eighteen or twenty millions of people who have lived under it,--in what way do they regard it? Is not that the best evidence that can be had respecting it? Is it to them an old woman's story, a useless parchment, a thing of old words at which all must now smile? Heaven mend them, if they reverence it more, as I fear they do, than they reverence their Bible. For them, after seventy-five years of trial, it has almost the weight of inspiration. In this respect,--with reference to this worship of the work of their forefathers, they may be in error. But that very error goes far to prove the excellence of the code. When a man has walked for six months over stony ways in the same boots, he will be believed when he says that his boots are good boots. No assertion to the contrary from any bystander will receive credence, even though it be shown that a stitch or two has come undone, and that some required purpose has not effectually been carried out. The boots have carried the man over his stony roads for six months, and they must be good boots. And so I say that the constitution must be a good constitution.

As to that positive breach of the constitution which has, as I maintain, been committed by the present Government, although I have been at some trouble to prove it, I must own that I do not think very much of it. It is to be lamented, but the evil admits, I think, of easy repair. It has happened at a period of unwonted difficulty, when the minds of men were intent rather on the support of that nationality which guarantees their liberties, than on the enjoyment of those liberties themselves, and the fault may be pardoned if it be acknowledged. But it is essential that it should be acknowledged. In such a matter as that there should at any rate be no doubt. Now, in this very year of the rebellion, it may be well that no clamour against Government should arise from the people, and thus add to the difficulties of the nation. But it will be bad, indeed, for the nation if such a fault shall have been committed by this Government and shall be allowed to pass unacknowledged, unrebuked,--as though it were a virtue and no fault. I cannot but think that the time will soon come in which Mr. Seward's reading of the constitution and Mr. Lincoln's assumption of illegal power under that reading will receive a different construction in the States than that put upon it by Mr. Binney.

But I have admitted that the constitution itself is not perfect. It seems to me that it requires to be amended on two separate points;--especially on two; and I cannot but acknowledge that there would be great difficulty in making such amendments. That matter of direct taxation is the first. As to that I shall speak again in referring to the financial position of the country. I think, however, that it must be admitted, in any discussion held on the constitution of the United States, that the theory of taxation as there laid down will not suffice for the wants of a great nation. If the States are to maintain their ground as a great national power, they must agree among themselves to bear the cost of such greatness. While a custom duty was sufficient for the public wants of the United States, this fault in the constitution was not felt. But now that standing armies have been inaugurated, that iron-clad ships are held as desirable, that a great national debt has been founded, custom duties will suffice no longer, nor will excise duties suffice. Direct taxation must be levied, and such taxation cannot be fairly levied without a change in the constitution. But such a change may be made in direct accordance with the spirit of the constitution, and the necessity for such an alteration cannot be held as proving any inefficiency in the original document for the purposes originally required.

As regards the other point which seems to me to require amendment, I must acknowledge that I am about to express simply my own opinion. Should Americans read what I write, they may probably say that I am recommending them to adopt the blunders made by the English in their practice of government. Englishmen, on the other hand, may not improbably conceive that a system which works well here under a monarchy, would absolutely fail under a presidency of four years' duration. Nevertheless I will venture to suggest that the government of the United States would be improved in all respects, if the gentlemen forming the President's cabinet were admitted to seats in Congress. At present they are virtually irresponsible. They are constitutionally little more than head clerks. This was all very well while the Government of the United States was as yet a small thing; but now it is no longer a small thing. The President himself cannot do all, nor can he be, in truth, responsible for all. A cabinet, such as is our cabinet, is necessary to him. Such a cabinet does exist, and the members of it take upon themselves the honours which are given to our cabinet ministers. But they are exempted from all that parliamentary contact which, in fact, gives to our cabinet ministers their adroitness, their responsibility, and their position in the country. On this subject also I must say another word or two further on.

But how am I to excuse the constitution on those points as to which it has, as I have said, fallen through,--in respect to which it has shown itself to be inefficient by the weakness of its own words? Seeing that all the executive power is intrusted to the President, it is especially necessary that the choice of the President should be guarded by constitutional enactments;--that the President should be chosen in such a manner as may seem best to the concentrated wisdom of the country. The President is placed in his seat for four years. For that term he is irremovable. He acts without any majority in either of the legislative Houses. He must state reasons for his conduct, but he is not responsible for those reasons. His own judgment is his sole guide. No desire of the people can turn him out; nor need he fear any clamour from the press. If an officer so high in power be needed, at any rate the choice of such an officer should be made with the greatest care. The constitution has decreed how such care should be exercised, but the constitution has not been able to maintain its own decree. The constituted electors of the President have become a mere name; and that officer is chosen by popular election, in opposition to the intention of those who framed the constitution. The effect of this may be seen in the characters of the men so chosen. Washington, Jefferson, Madison, the two Adamses, and Jackson were the owners of names that have become known in history. They were men who have left their marks behind them. Those in Europe who have read of anything, have read of them. Americans, whether as republicans they admire Washington and the Adamses, or as democrats hold by Jefferson, Madison, and Jackson, do not at any rate blush for their old Presidents. But who has heard of Polk, of Pierce, and of Buchanan? What American is proud of them? In the old days the name of a future President might be surmised. He would probably be a man honoured in the nation; but who now can make a guess as to the next President? In one respect a guess may be made with some safety. The next President will be a man whose name has as yet offended no one by its prominence. But one requisite is essential for a President; he must be a man whom none as yet have delighted to honour.

This has come of universal suffrage; and seeing that it has come in spite of the constitution, and not by the constitution, it is very bad. Nor in saying this am I speaking my own conviction so much as that of all educated Americans with whom I have discussed the subject. At the present moment universal suffrage is not popular. Those who are the highest among the people certainly do not love it. I doubt whether the masses of the people have ever craved it. It has been introduced into the Presidential elections by men called politicians--by men who have made it a matter of trade to dabble in state affairs, and who have gradually learned to see how the constitutional law, with reference to the Presidential electors, could be set aside without any positive breach of the constitution.*

*On this matter one of the best, and best informed Americans that
I have known told me that he differed from me. "It introduced
itself," said he. "It was the result of social and political
forces. Election of the President by popular choice became a
necessity." The meaning of this is, that in regard to their
Presidential elections the United States drifted into universal
suffrage. I do not know that his theory is one more comfortable
for his country than my own.

Whether or no any backward step can now be taken,--whether these elections can again be put into the hands of men fit to exercise a choice in such a matter,--may well be doubted. Facilis descensus Averni. But the recovery of the downward steps is very difficult. On that subject, however, I hardly venture here to give an opinion. I only declare what has been done, and express my belief that it has not been done in conformity with the wishes of the people,--as it certainly has not been done in conformity with the intention of the constitution.

In another matter a departure has been made from the conservative spirit of the constitution. This departure is equally grave with the other, but it is one which certainly does admit of correction. I allude to the present position assumed by many of the senators, and to the instructions given to them by the State legislatures, as to the votes which they shall give in the Senate. An obedience on their part to such instructions is equal in its effects to the introduction of universal suffrage into the elections. It makes them hang upon the people, divests them of their personal responsibility, takes away all those advantages given to them by a six years' certain tenure of office, and annuls the safety secured by a conservative method of election. Here again I must declare my opinion that this democratic practice has crept into the Senate without any expressed wish of the people. In all such matters the people of the nation has been strangely undemonstrative. It has been done as part of a system which has been used for transferring the political power of the nation to a body of trading politicians who have become known and felt as a mass, and not known and felt as individuals. I find it difficult to describe the present political position of the States in this respect. The millions of the people are eager for the constitution, are proud of their power as a nation, and are ambitious of national greatness. But they are not, as I think, especially desirous of retaining political influences in their own hands. At many of the elections it is difficult to induce them to vote. They have among them a half-knowledge that politics is a trade in the hands of the lawyers, and that they are the capital by which those political tradesmen carry on their business. These politicians are all lawyers. Politics and law go together as naturally as the possession of land and the exercise of magisterial powers do with us. It may be well that it should be so, as the lawyers are the best educated men of the country, and need not necessarily be the most dishonest. Political power has come into their hands, and it is for their purposes and by their influences that the spread of democracy has been encouraged.

As regards the Senate, the recovery of their old dignity and former position is within their own power. No amendment of the constitution is needed here, nor has the weakness come from any insufficiency of the constitution. The Senate can assume to itself to-morrow its own glories, and can, by doing so, become the saviours of the honour and glory of the nation. It is to the Senate that we must look for that conservative element which may protect the United States from the violence of demagogues on one side and from the despotism of military power on the other. The Senate, and the Senate only, can keep the President in check. The Senate also has a power over the Lower House with reference to the disposal of money, which deprives the House of Representatives of that exclusive authority which belongs to our House of Commons. It is not simply that the House of Representatives cannot do what is done by the House of Commons. There is more than this. To the Senate, in the minds of all Americans, belongs that superior prestige, that acknowledged possession of the greater power and fuller scope for action, which is with us as clearly the possession of the House of Commons. The United States' Senate can be conservative, and can be so by virtue of the constitution. The love of the constitution in the hearts of all Americans is so strong that the exercise of such power by the Senate would strengthen rather than endanger its position. I could wish that the senators would abandon their money payments, but I do not imagine that that will be done exactly in these days.

I have now endeavoured to describe the strength of the constitution of the United States, and to explain its weakness. The great question is at this moment being solved, whether or no that constitution will still be found equal to its requirements. It has hitherto been the mainspring in the government of the people. They have trusted with almost childlike confidence to the wisdom of their founders, and have said to their rulers,--"There; in those words, you must find the extent and the limit of your powers. It is written down for you, so that he who runs may read." That writing down, as it were, at a single sitting, of a sufficient code of instructions for the governors of a great nation, had not hitherto in the world's history been found to answer. In this instance it has, at any rate, answered better than in any other, probably because the words so written contained in them less pretence of finality in political wisdom than other written constitutions have assumed. A young tree must bend, or the winds will certainly break it. For myself I can honestly express my hope that no storm may destroy this tree.