• • . <-v V , ' • * "J^ "•\.l ♦ ay K- ♦ - o >- ^^-^K -n^-o^ '- -n^-o^ / > -?5°x. .^* .^"^ *<^^ ^4* uT •>* •.''^3B5?/ -^^ ass the more impor- tant measures ; such, for example, as related to war, treaties, coining money, and ascertaining the sums necessary for the defence and welfare of the United States. In the thirteenth and last article it was declared : 30 CAUSES OF THE CRISIS. " Each State shall abide by the determinations of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the articles of this Confederation shall be invariably observed by every State, and the union shall be perpetual ; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to by a Congress of the United States, and be after- wards confirmed by the legislatures of every State." l!>[ot withstanding the excellent dispositions of the people, and the strong pledges of inviolable fidelity contained in the Articles, the Confederation soon failed through its own weakness. In reference to this state of things, Hamilton, in the fifteenth number of the Federalist^ has these forcible re- marks : " It has happened as was to have been foreseen. The meas- ures of the union have not been executed ; the delinquencies of the States have, step by step, matured themselves to an ex- treme, which has at length arrested all the wheels of the IsTa- tional Government, and brought them to an awful stand. Con- gress at this time scarcely possesses the means of keeping up .the form of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a Federal Government. Things did not come to this desperate extremity at once. The causes which have been specified, pro- duced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. Tlie greater deficiencies of some States furnished the pretext of example, and the temptation of interest to the complying, or least delin- cpient States. Why should we do more in proportion than those who are embarked with us -in the same political voyage ? Why should wc consent to bear more than our proj)er share of the common burthen ? These were suggestions Avhich human selfishness could not withstand, and which even speculative men, who looked forward to remote' consequences, could not without liesitation combat. Each State yielding to the per- suasive voice of immediate interest or convenience, has succes- sively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and crush us beneath its ruins." Tlie Convention assembled under very embarrassing circum- CAUSES OF THE CKISIS. 3i stances. Tliej had not only tlie difficult task to perform," of formiDg a Constitution for a great country ; but they had to do this by the union or merging of independent sovereign States. Tlie members not only differed in their own views, but they had no power oi final action ; their province being very similar to that of a committee charged with drafting a bill upon a given subject, to be afterwards submitted to the House. The Con- stitution framed by the Convention, had to j)ass through the severe ordeal of the separate State Conventions ; and by a pro- vision of the seventh article, the ratification of nine States was necessary to give it effect ; and then only between the States so ratifying the same. This provision was in violation of the Articles of Confederation, by which the assent of all the States was required to make amendments. As all the States under the Confederation were sovereign, and the people had become ac- customed to this independent equality, any proposition to re- duce, either the importance of all, or the relative importance of the smaller States, would be certain to meet with the most de- termined opposition in the separate State Conventions. Statesmen are not always able to do what they would ; and they are, therefore, forced by circumstances, to either do noth- ing, or to do the best they can. The times were perilous, and the necessity for action most imperative ; and the best minds in the Convention were so trammelled, and so compelled to act against their better judgment, that they were not able to ac- complish as much, perhaps, as those of inferior capacity, but whose views Avere made in harmony with State pride and local jealousy. § 3. The same siibject further considered. Tlie fear that the Constitution would be rejected by the separate States, and of the great perils likely to follow" such a * In bis disquisition on government, Mr. Calhoun has these just and forcible remarks : " Instead of a matter of necessity, it is one of the most difficult tasks imposed on man to form a Constitution worthy of the name ; -while to form a i^erfect one — one that would completely counteract the tendency of government to oppression and abuse, annode onl}^ being different. If we concede, however, that it is the right of the General Government, under the Constitution, to determine the extent of its own powers in the last resort ; still the practical difficulty is not wholly, but only partially, obviated. As the Federal Gov- ernment is one of limited powers, its action beyond the scope of these powers must be void. The inevitable result of a want of power in the agent, is to render the act null and void ; and, necessity, that if the ultimate right of coustitutional construction rests with each State, then the State can nullify or secede, at her election. As the right to determine the extent of its own powers must necessarily exist in government, it has been often doubted whether limitations of power w"ere of any ultimate practical utility. In other words, whether the power of construction was not practically equivalent to the power of legislation. The objection is good against a theory of government, which makes no provision for its own amendment. By an abuse of the power of construction, the will of the framers of the Constitution may be violated ; and, in the contemplation of such a theory of government, there is no rem- edy. The extreme i-ight of revolution exists in fact, but not in the contemplation of the governmental theory ; as that extreme right is never sanctioned by any consti- tution. But the objection as against a constitution which provides for its own amendment, is not wholly, but only partially true. The will of the framers of such a constitution may be violated for a time ; but as the power to amend always exists, the misconstruc- tion can be corrected. Our courts hold the same relation to the Constitution that tlie courts of England now bear to the Acts of Parliament. Her judges under both theo- ries, now hold their offices during good behavior, and the powers of the framers of our Constitution, and those of Parliament, have no theoretical limitation. On the contem- plation of each tlicory, they can do any thing within the limits of physical possibility. The judges in England may misconstrue an Act of Parliament, but that body can amend the Act, and make it too plain to be misunderstood. So, of our Constitution, it can be niade plainer, and the evils of misconstruction thus be removed. CAUSES OF TILE CRISIS. 6i consequently, all persons, natural and artificial, have tlie un- doubted right to disregard the act. An unconstitutional meas- ure of Congress is no law, but simply a void act. § 5. The same suhject continued. If it be true, (as we think it is,) that, in the contemplation of the existing Constitution, the Federal Government has the right to determiile the extent of its own powers in the last re- sort ; and, of consequence, the extent of the powers reserved to the separate States ; then these several positions would seem to be correct : 1. If the question be executive, the right oi final decision rests with the President.* 2. If legislative, with Congress. 3. If judicial, with the Supreme Court. 4. And the question, whether the particular matter be ex- ecutive, legislative, or judicial, with the same Court. This view makes the Constitution consistent in theory, and avoids, theoretically, the radical vice of the Confederation. But is the difficulty avoided 'practically ? Has not our theory sanc- tioned the continued existence of great separate organized, and, in many respects, antagonistic communities within the Federal territorial jurisdiction ? Has it not, in fact, permitted the con- tinuance of powers inimical, in practice, to the successful and peaceful operation of the Federal Government ? For the purpose of illustration, we will suppose the question in controversy to be judicial. The President cannot act upon it at all ; neither can Congress ; and the Judiciary must wait until the question is brought before it. Courts must await the action of parties. It may be years before any one may choose to bring up a case involving the point in controversy. In the mean time, the States, as well as other parties, must act. upon their own construction. "When, therefore, a new and diffi- cult question involving State rights comes up, the States are prone to decide in their own favor ; and having once committed * " The act of Feb. 28, 1'795, (1 Statutes at Large, 421,) which confers power on the President to call forth the militia in certain exigencies, is a constitutional law, and the President is the exclusive and final judge whether the exigency has arisen." — (12 Wieaton, 19.) 38 CAUSES OF THE CKISIS. themselves, the pride of sovereignty and the impulses of passion, will make them adhere with obstinacy to their ojDinions ; and although the controversy may be peacefully settled, the angry conflict between the two jurisdictions leaves its sting behind. It is also true, that individuals may have very great confidence in their own construction of the Constitution, especially where their interests, passions, or prejudices are concerned ; but this pride of opinion is not so great as it is in sovereignties ; and in- dividuals have not that power which resides in States. The decisions of Courts can be more readily executed upon individ- uals standing alone, than upon great organizations, or upon in- dividuals under their protection, rightful or assumed. Tlie following remarks of Hamilton, in the fifteenth number of the Federalist^ though made with reference to the States while under the Confederation, are alike applicable to them under the Constitution : " In addition to all this, there is, in the nature of sovereign power, an impatience of control, which disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association Avhich is formed upon the principle of uniting in one common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will ba a perpetual efibrt to fly from the common centre. Tliis tendency is not difficult to be ac- counted for. It has its origin in the law of power. Power, controlled or abridged, is almost always the rival and enemy of that power by which it is controlled or abridged." By our theory, the same citizen owes allegiance to two sep- arate and distinct powers, both of which he knows are of lira- tVe(^ jurisdiction ; and that the action 6f each beyond its con- stitutional sphere, is void. But he is not always able to know which is constitutionally right in its claims to his obedience, lie is often left in doubt ; and while his best judgment may tell him that his superior allegiance is due to the Federal Govern- ment, his heart is with his State, not only because she is nearest in position to him, and can first reach him by her process, but because he finds her in possession, under the Constitution itself, ( '^ all those impoi'tant powers of government that must virtually CAUSES or THE cKisis. 39 affect liis dearest interests. The power over life, liberty, repu- tation, and proj)erty, is reserved to his State. Our experience, short as it has been, and under the favor- able circumstances heretofore attending our experiment, has shown that the predictions of Hamilton,"-^ by far the greatest statesman of our country, were true. In almost every instance when a controversy has arisen between the Federal Government and that of a State, the latter carried its point. Even the case * "It is a known fact in human nature that its affections arc commonly -weak in proportion to the distance or diifusiveness of the object. Upon the principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local Governments, than towards the Government of the Union, unless the force of that principle should be destroyed by a much better administration of the latter." "There is one transcendent advantage belonging to the province of State Govern- ments which alone suffices to place the matter in a clear and satisfactory light. I mean the ordinary administration of civil and criminal justice. Tliis, of all others, is the most powerful, most universal, and most attractive soui'ce of popular obedience and attachment. It is this which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests, and familiar concerns, to which the sensibility of individuals is more immediately awake — contributes more than any other circum- stance, to impress upon the minds of the people affection, esteem, and reverence towards the Govenimcnt. This great cement of society, which will diffuse itself almost wholly through the channels of the particular Governments, independent of all other causes of influence, wOuld insure them so decided an empire over their respective citizens, as to render them at all times a complete counterpoise, and not unfrequently dangerous rivals to the power of the Union." , " Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation, and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty, or obedience to the persons of whom they held it. Each principal vassal was a kind of sovereign v/ithin his particular demesnes. The conse- quences of this situation were a continual opposition to the authority of the sovereign, and frequent wars between the great barons, or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppression of their immediate lords. This period of European affairs is emphatically styled by historians the times of feudal an- archy." — (Federalist, No. lY.) " Reasons have been already given to induce- a supposition that the State Govern- ments will too naturally be prone to a rivalship with that of the Union, the foundation of which will be the love of power ; and that, in any contest between the federal head and one of its members, the people will be most apt to unite with their local govern- ment."— (Id., No. 25.) 4:0 CAUSES OF THE CKISIS. of South Carolina in 1833, in reference to the question of the tariff, did not constitute an entire exception, as is too often sup- posed. It is true that President Jackson promptly issued his proclamation, in which he assumed decisive ground in support of the laws of the nation ; but it is equally true that the tarift' was so modified as to receive the support of the representation of that State in Congress. In other words, it was a compromise which decided nothing. But in the contest between the Federal Judiciary and the State of Georgia in 1831, in reference to the rights of the Cher- okee Indians under a treaty of the United States, that State carried her point with a high hand, though General Jackson was then President. The following extracts from Benton's Thirty Years' Yiew, will give some general idea of its char- acter : " Judge Clayton, in whose circuit the Indian counties fell, at his first charge to the grand jury assured the Indians of pro- tection, warned the intermeddlers of the mischief they were doing, and of the inutility of applying to the Supreme Court With respect to the Supreme Court, the judge de- clared that .he should pay no attention to its mandate — ^liolding no writ of error to lie from the Supreme Court of the United States to his State Court — but would execute the sentence of the law, whatever it might be, in defiance of the Supreme Court ; and such was the fact. Instigated by foreign interfer- ence, and relying upon its protection, one George Tassels, of Indian descent, committed a homicide in resisting the laws of Georgia — was tried for murder — convicted — condemned — and sentenced to be hanged upon a given day. A writ of error, to bring the case before itself, was obtained from the Supreme Court of the United States The day for the execution of Tassels came round : he was hanged : and the writ of the Suj)reme Court was no more heard of." — (Yol. i., 165, IGG.) The Supreme Court might have sustained the validity of i\\Q act of the Legislature of Georgia extending her jurisdiction over the Cherokees, had the case gone up to that Court ; but the State Court and the Governor decided for themselves, (and fully carried out their decision,) that the Supreme Court had no jurisdiction in such cases. ' This was deciding the very ques- tion that was first in issue. This action of the State authorities CAUSES OF THE CEISIS. 41 was based upon one of two grounds : 1. That tlic right to de- termine, in the last resort, the extent of its own powers, rests with each State ; or, 2. That the Constitution has provided no mode of determining the question of conflicting jurisdiction be- tween the Federal and State tribunals, but has left them in perpetual conflict. Col. Benton denies the alleged right of ]Srullification and Secession, while he inconsistently sustains the action of Georma. § 6. The same siibject further considered. The mode in which the Constitution was ratified, has given rise to great doubts, as to the true character of the Government created by the instrument. The historical fact is certain, that the States existed, as distinct sovereignties, at the time that in- strument was formed ; and that each State ratified the Consti- tution for itself alone, acting in its organized capacity as a unit. The little State of Delaware, for example, would not have been bound by the Constitution, without her own separate ratifica- tion, though every other State had done so. . Though it be not within the scope of this work to enter into any elaborate discussion of a question which has so much di- vided the public men of the nation ; yet the writer may be per- mitted to state concisely his view of a single point. As the States existed when the Constitution was formed, there was but one of two logical modes in which this could * " And the writ of the Supreme Court was no more heard of,^^ says CoL Benton. This is a melancholy truth. Here was a court claiming to be the supreme judicial tribunal of a great nation, that could not even execute its process. Who can have any confidence in, or respect for, a court of such extravagant pretensions ; but, in fact, pos- sessing so little real power ? True, the individual, in whose person a great and deci- sive principle of law and justice was violated, was obscure, and of mixed blood. Still, for that very reason, the justice and majesty of the law should have been vindicated. It is the glory of a true theory of government, that its protection is alike over all, and equally imparted and. efficient in all cases. History shows that the great and eternal principles of justice are always first violated in the person of some poor and obscure individual. But the principle itself, once violated with impunity, ceases to conmiand respect. The remarks of the profound De Tocqueville, (2'7o, note,) that " the governments of the States are in reality the authorities which direct society in America," is unfortu- nately too true. The result has necessarily been to form sectional and antagonistic parties in our country. 42 CAUSES OF THE CRISIS. liare been done. The first, bj tlie separate action of the States as ah"eadj organized communities ; and the second, by the States first dissolving themselves into their original elements, and tlms permitting the people, acting as one mass, to form their own Constitution. The first method was the proper one, under the existing circumstances ; for the reason, that so long as a people remain organized, they must act through their or- ganization. It was the most simple, concise, and direct mode of action, and equally efficient ; for it must be conceded, that, though the Constitution was formed by the separate action of each State, they had still the clear right, in this very onode, to confer upon the Government any powers they pleased. If they had the right to delegate a part, they had equally the right to delegate the whole of their own powers. Therefore, the mere onode in which the Constitution w^as formed is not conclusive, but onlj j)rimayacie evidence of its true character. Had the States intended to delegate all their ]50wers to the Union, they could have well formed the Constitution in the manner they did adopt. At the same time, it must be admitted that the mode adopted would require the language of delegation to be more explicit and clear; because \h.Q jpriraa facie presumption would always be, that the States did not mean to delegate their powers, and thus cripple or annihilate themselves. Governments, at least in theory, are intended to be perpetual ; and the Inw will not, therefore, admit any abridgment of their existing powers, or their entire annihilation, without clear proof. The language of the Constitution, though clear to a reasonable extent, is yet susceptible of being made much more explicit. It is true, that while no theory of government can be formed, so as entirely to escape forcible resistance at all times ; yet a constitution may be made so clear, as greatly to diminish the plausihle pretences for alleged constitutional resistance ; and thus force reljellious spirits to plainly base their action upon the true ground. The people will hesitate much longer in join- ing, even for the same alleged cause, a pla,in rebellion, than they will in vindicating, by force of arms, a plausible construction of the Constitution. Tlie want of a more clear and ex^Dlicit state- ment, in the Constitution, of the right of the General Govern- ment to determine its own powers, and those of the States, in the last resort, has, ior practical purposes, continued the radical \\cc of the old Confederation. CAUSES OF THE CKISIS. 43 § 7. Other effects of divided sovereignty. A citizen of the United States and of a State, may be twice tried, convicted, and punished for the same act. This results from the principle, that he owes allegiance to two sovereigns. It has been so repeatedly held by the Supreme Court of the United States. In the case of Moore v. The State of Illinois, (14 Howard, 13,) Mr. Justice Grier, in delivering the oj^inion of the Court, among other things, said : " Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or trans- gression of the laws of both That either or both may (if they see fit) punish such an offender, cannot be doubted He could not plead the punishment by one in bar to a convic- tion by the other ; consequently, this Court has decided, in the case of Fox v. Tlie State of Ohio, (5 How. 432,) that a State may punish the offence of uttering or passing false coin, as a cheat or fraud practiced on its citizens ; and, in the case of the United States v. Marigold, (9 How. 560,) that Congress, in the proper exercise of its authority, may punish the same act as an offence against the United States." Mr. Justice McLean dissented, and justly censured the prin- ciple that an individual could be j)unished twice for the same act ; yet he was unable to satisfy the other judges that the opinion of the Court was not truly the law. The j)rovince of a Court, even that of the Supreme Court of the United States, is simply to declare, not to make the law, Tho question whether the principle involved be just or unjust is a matter for the law- maker, not the law-exponent, to determine. It is true, that in reference to a mere question of construction, where the lan- guage of the law is not clear, we may properly inquire into the legitimate result of a proposed interpretation. But when the meaning is plain, the courts must carry out the intention of the legislative power, though the principle, in the opinion of the Court, may be unjust ; otherwise, there could be no separation of the legislative and judicial functions. Bj the second section of the third article it is provided, that 44 CAUSES OF THE CEISIS. the "judicial power shall extend to controversies between two or more States ; " but tlie Constitution provides no means of enforcing the judgment of the court when rendered. In case of resistance, it might be very difficult to carry out the decision of the court. Though, from the dignity of tlie parties, it might be inferred, that the unsuccessful State would submit with a good grace ; yet history shows that bodies of men, when exas- perated, are prone to great excesses. Should the present theory continue a few years longer, some case will most probably arise that will conclusively test this question. § 8. Char aeter of tlie reserved powers. As before stated, the powers of the General Government are those delegated^ vfliile the powers of the States are those reserved. This is clearly stated in the tenth amended article : " The powers not delegated to the United States by the Constitution, nOr prohibited by it to the States, are reserved to the States respectively, as to the people." Tliis language is very explicit. If the power be not delegated and not prohibited, then it is reserved ; but if it be either del- egated or prohibited, it is not reserved. There are certain pow- ers not delegated to the United States, that are prohibited to the States ; such as, for example, the power to grant titles of nobility. Such powers belong to neither the one theory nor the other, but are prohibited to both. To ascertain the powers re- served to the States, it is necessary ^/'5^ to know the powers delegated and prohibited. All other powers of government, after subtracting these, are reserved to the States. The Supreme Court of the United States has always held that the amendments to the Constitution of the United States were simply restrictions upon tlie powers of the General Gov- ernment, and not upon those of the several States. Thus in the case of Barrow v. The City of Baltimore, (7 Peters, 243,) Chief Justice Marshall, in delivering the opinion of the Court, said : " The people of tlie United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. Tlie powers they conferred on this Government were to be exercised ^..y itself ; and the limitations on power, if expressed in general CAUSES OF THE CEISIS. 45 terms, are natnrallj, and, we think, necessarily applicable to the government created by the instrmnent. They arc limita- tions of power granted in the instrument itself; not of distinct governments framed by different persons and for different piu'- poses But it is universally understood, it is part of the history of the day, that the great Eevolution which established the Constitution of the United States was not effected without immense opposition In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of j)ower were recommended. These amendments de- manded security against the apprehended encroachments of the General Government, not against those of the local govern- ments." ■" Hence, in that case, the Court determined that the provision of the Constitution, that private property should not be taken for public use without just compensation, did not apply to the States. The same principle was again held by that Court in the case of Withers v. Brickley, (20 Howard, 84.) In the case of Satterlee v. Matthewson, (2 Peters, 380,) it was decided that there was nothing in the Constitution of the United States which forbid the Legislature of a State from exercising judicial functions. In the case of the Bank of the State of Alabama t\ Dalton, (9 Howard, 530,) it appeared that the plaintiff recovei-ed judg- ment against the defendant in the State of Alabama, February 7, 1843, and afterwards sued the defendant uj)on tlie record of * In the tbirty-eiglith number of the Federalist, Mr. Madison enumerates the principal objections urged against the Constitution ; and from that it will be seen how few persons objected to the weakness of the Federal Government. The current of ideas ran strongly in favor of the States, and against the alleged danger of a strong central government. It may seem remarkable that so few minds perceived the defects that time has shown to exist. This, however, was the case with respect to the radical vice of the Confederation, speaking of which, in the same number, Mr. Madison says : " It is observable that among the numerous objections and amendments suggested by the several States, when those articles were submitted for their ratification, not one is found which alludes to the great and radical error, which on actual trial has discov- ered itself." The influence which the small States exerted in the formation of the Constitution, and their jealousy of the powers of the Federal Government, arc shown by the pro- ceedings of the Convention, and may be seen in the fifth article, where it is provided that amendments ratified by three-fourths of the States shall be valid ; provided, that " no State, without its consent, shall be deprived of its equal suffrage in the Senate." 46 CAUSES OF THE CKISIS. this judgment, in the District Court of the United States for the Northern District of the State of Mississippi, November 10, 1846. Defendant pleaded the Statute of Limitations of the State of Mis- sissippi, passed in 1844, " which (1) bars all suits on judgments recovered within the State after the lapse of seven years ; and (2) all suits on judgments obtained out of the State in six years, in cases of judgments thereafter rendered ; and (3) all suits on judgments obtained out of the State before the act was passed are barred, unless suit be brought thereon within two years next after the date of the act. On this latter provision the defence depends," Mr. Justice Catron, who delivered the opinion of the Court, remarked : " The stringency of the case is, that the Act of Limitations of Mississippi invites to the State and protects absconding debtors from other States, by refusing a creditor a remedy on his judg- ment, which is in full force in the State whence the debtor ab- sconded Li administering justice to enforce contracts and judgments, the States of the Union act independently of each other, and their courts are governed by the laws and mu- nicipal regulations of that State where a remedy is sought, unless they are controlled by the Constitution of the United States, or by laws enacted under its authority." The Court, in that case, decided, that " the State law is not oj^posed to the Constitution of the United States, or to the act of Congress of 1790." The same decision was made in a case reported in 18 Howard, 249. This act not only made an invidious distinction between judgments rendered in and out of the State, but it allowed a very short time in which to bring suits upon the latter class of judgments. As the State had the power to fix the period of two years, it is difficult to set any limits to that power, and a much shorter period of time might have been designated. By this iniquitous measure, the fraudulent debtor was legally ena- bled to pay his creditor by running off. By the act, absconding to avoid honest debts was made a virtue. § 9. The same siibject continued. Li the case of Mager v. Grima, (8 Howard, 490,) it appeared that John Mager, a citizen of the State of Louisiana, left a leg- CAUSES OF THE CRISIS. 47 acy to liis sister, a resident of France. The statute of Louisiana imposed a tax of ten per cent, upon legacies to foreigners not domiciled within the State.* Chief Justice Taney, in delivering the opinion of the Court, said : " JSTow the law in question is nothing more than the exercise of the power which every State and sovereignty possesses of regulating the manner and the term upon which property, real and personal, within its dominion may be transmitted by last will and testament, or by inheritance ; and of prescribing who shall and who shall not be capable of taking it." The State had the power to impose the tax, and fix the rate ; and it would seem that the discrimination made against foreign- ers might have been extended to the citizens of other States, and of any particular State. So, the general power " of pre- scribing who shair and who shall not take property by last will and testament, or by inheritance," would extend to the citizens of other States, and of any particular State. " A writ of error from the Supreme Court of the TJnited States to the Supremo Court of a State, directs the latter court to transmit the record of the case to the upper court." (Chief Justice Taney. Scott v. Sandford, 19 Howard, 453.) But how the Supreme Court could compel a compliance with its writ, in case of refusal by the State Court, is a very difficult case to determine. In the report of the case of Hunter v. Mar- tin, (4 Munford's Yir. Eej)., 1,) it is stated that " the appellee Martin obtained a writ of error from the Supreme Court of the United States, requiring the Court of Appeals of A^rginia to certify the record for re-examination by that court. Tlie Hon- orable "William Fleming, president of this Court, complied with the writ by certifying a transcript ' imjprovidently ^ as was after- wards decided by himself as well as the other judges." In that case it was held by the Supreme Court of the United States, that " the return of a copy of the record, under the seal of the court, certified by the clerk, and annexed to the writ of error, is a sufficient return in such a case." Head note of the case. (6 "Wheaton, 304.) In the case of Ableman v. Booth, * To constitute domicile, " there must bo actual residence in the place, ivitli the intention that it is to be a principal and permanent residence." Language of Mr. Jus- tice Wayne in delivering the opinion of the Court, in the case of Enuis v. Smith, (14 Howard, 423.) •iS CAUSES OF THE CRISIS. (21 Howard, 506,) it appeared tliat the Supreme Court of "Wis- consin directed the clerk of tliat court to " make no return to the writ of error, and to enter no order upon tlie journals or records of tlio court concerning tlie same." The Suj)reme Court of the United States, under the circumstances, permitted Mr. Black, the attorney-general of the United States, to file a certi- fied copy of the record, which had been premously obtained. The Court was thus enabled to proceed with the case ; but had the statute of the State made it a criminal act in the clerk to certify a copy of the record for any purpose, or had that officer refused to make out the transcript, the question of the power of the Supreme Court of the United States to compel a compliance with the writ of error, woiild have been brought up for decision. According to newspaper report, that Court has lately decided, upon the application of the Governor of Kentucky for a writ of mandamus to compel the Governor of Ohio to surrender a fugi- tive from justice, that the Federal tribunals have no power over State officers. But until a full and authentic report of the case is made, we may not understand correctly the exact ground as- sumed by the Court. In the case of Tassels, already referred to, the prisoner was executed in defiance of the writ of error ; and there seems to have been no j^ower in the Supreme Court of the United States to vindicate its authority, by punishing the oft'ending judge of the State Court. § 10. The, same stibjcct further considered. By the second section of the first article of the Constitution, members of Congress shall be chosen every second year by the people of the several States, and " the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." It therefore be- longs to each State to determine w^ho shall and who shall not be citizens of that State. The power of naturalization is exclu- Fively conferred upon Congress ; and the exercise of this power only makes the alien a citizen of the United States, and not a citizen of any particular State."" * The question whothcr a person of African descent can become a citizen of the United States, was not determined in the case of Seott v. Sandford, only three justices deciding that be conld not, namely : Taney, Wayne, and Daniels. Justices Grier, Nel- CAUSES OF TUE CKISIS. 49 " Every State," says Chief Justice Taney, " lias the un- doubted right to determine the status or doiuestic and social condition of the persons domiciled within its territory, except in so far as the powers of the States in this respect arc restrained, as duties and obligations imposed upon them by the Constitu- tion of the United States."— (10 Howard, 93.) And Mr. Justice Curtis, in his most able opinion, delivered in the case of Scott v. Sandford, (19 Howard,) uses this lan- guage : " To what citizens the elective franchise shall be confided, is a question to be determined by each State, in accordance ■with its own views of the necessities or expediences of its own condition. "What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way." The clause of the Constitution which restrains the powers of the several States, and imposes duties upon them in reference to citizens of other States, is found in the second section of the third article, in these words : " The citizens of each State shall be entitled to all jDrivileges and immunities of citizens in the several States." This clause is obscure ; but from the opinion of Chief Justice Taney, in the case of Scott v. Sandford, (19 Howard, -IIG,) the following conclusions may be drawn : son, Campbell, and Catron concurred in the judr/mcnt of the court upon oiher grounds, and expressed no opinion upon this point. Justices McLean and Curtis dissented. It was conceded by all the justices, tbat each State could make any person a citizen of the State. There was no difference of opinion between Chief Justice Taney and Mr. Justice Curtis in reference to the naturalization o? foreigners. But as to natives, there was this difference : Chief Justice Taney, while clearly conceding the right of each State to make any one — native or foreign born — a citizen of the State, denied the right of the State to make even a native of African descent, a citizen of the United States. Mr. Justice Curtis, on the contrary, said : " And my opinion is, that, under the Constitution of the United States, every per- son born on the soil of a State, who is a citizen of that State, by force of its Constitu- tion and laws, is also a citizen of the United States." This language is very clear and explicit ; and this position was sustained by Mr. Justice Curtis, by a force of reasoning and authority that would seem to be unanswer- able. But as the Constitution only gives Congress power in reference to naturalha- tion, and confers no power as to natives ; it is clear, that if the proposition of Mr. Justice Curtis be correct, the converse of it must be equally true, namely : that each State may exclude any native of the State — white or colored— from citizenship, both of the particular State, and of the United States. 4 50 CAUSES OF THE CRISIS. 1. It exempts persons wlio arc at the same time both citizens of the United States and of a State, and being in another State, from any special laws and police regulations not apj)licable to citizens of the latter State. 2. It gives them the right to enter any other State, singly or in companies, without pass or passport, and without obstruc- tion, to sojourn there so long as they please, and go when and where they please, unless they transgress some law applicable to citizens of the State. 3. It gives them the full liberty of speech in public and pri- vate, so far as enjoyed by the citizens of the State. 4. It gives them the right to hold public meetings, to keep and carry arms, so far as citizens of the State would be permit- ted to do so. It will be seen that none of these privileges, secured by the Constitution of the United States, relate at all to State citizen- sliip / but that the complete power over that right is reserved to each State respectively. For example, the State of Califor- nia, by a provision of her Constitution, could exclude all per- sons born within any particular State or States from ever be- coming citizens of California. Any one who will examine the subject carefully, will readily find that the mass of powers reserved to the States are not only the most important powers of Government, but that they are unlimited by the Constitution of the United States, And if we follow the rule of construction laid down by the Supreme Court of the United States, (and followed by most of the State Courts, if not by all,) that the limitations of power contained in the amendments to the Constitution of the United States, apply only to the Government created by the instrument itself; then it is clear that the States possess such a mass of powers, that they can, by a simple abuse of those powers, render the Union ulti- mately intolerable. For example, the power of one State to harass another by hostile legislation and insulting resolutions, is entirely without any efficient and peaceful remedy. The most partial and invidious legislation may be resorted to, and the most harsh and insulting resolution passed by the Legis- latures of the difi'erent States. Any State may establish a re- ligion, or prohibit the free exercise thereof, abridge the freedom of the press or of speech, take private property for public uses CAUSES OF THE CRISIS. 61 ^^'itliout just compensation, deny the right of j)etition and tlie right to bear arms. It will be seen that the limitations con- tained in the first amendment relate expressly to Congress, and not to the States. It is very true that this mass of despotic power reserved to the States, is, at ^esent, restrained by the provisions of the State Constitutions ; but the power to amend exists in each State ; and by amendment these restrictions could be removed. And we have, especially of late, seen enough of sectional bitter- ness and State hostility, to give us most reasonable apprehen- sion for the future. § 11. The general corruption of our 2nibUG men. The general corruption of our public men is properly at-' tributable to the infamous principle, that " to the victors belong the spoils." Under the withc^ring influence of this most vicious maxim, our elections. State and National, have practically be- come contests, more for the spoils of office, than for the success of great principles ; unless, indeed, it be those seven principles mentioned by John Kandolph of E-oanoke : '■'■five loaves and tvjojishesy And this mercenary struggle is not only for those offices necessary for the due and proper administration of public justice, but for mere nominal positions, created by unscrupulous partisans to reward their friends. To what extent the true prin- ciples of government, and the rights of our entire nation, as well as of justice, are often sacrificed by those in power, upon the altar of private friendship and of false pity, is shown by a state- ment of Col. Benton : " lie [Mr. Jeffei^son] told mo himself, not long before his death, (Christmas, 1824,) that he had failed to remove many who deserved it, but who were spared through the inter- cession of friends and concern for their distressed families." — (Thirty Years' Yiew, 1G2.) This fact does not add to the reputation of Mr. Jefterson as a statesman. The same wealaiess that would keep an unfit person in office, would lead to the creation of an office for his benefit. Mr. Hallam justly remarks, in substance, in his Con- stitutional History, that weak princes are generally under the control of their domestics. The want of a proper conception of 02 CAUSES OF THE CRISIS. duty, and tlie failure to truly discern the best ultimate human- ity, will very naturally lead to the sacrifice of principle to feel- ing, and the rights and interests of the great and mighty future, to the pressing but trifling expediency of the moment. The really great "Washington had a right conception of the duties of his position, was too just to sacrifice duty to feeling, and rose above those temptations which lesser minds could not withstand. In one of his letters, he says : " My friend I receive with cordial Avelcome. lie is welcome to my house, and welcome to my heart ; but with all his good qualities, he is not a man of business. Ilis opponent, with all his politics so hostile to me, is a man of business. My private feelings have nothing to do in the case. I am not George Wash- ington, but President of the United States. As George Wash- ington, I would do this man any kindness in my power — as Pres- ident of the United States I can do nothing." How forcible and just is tliat sentence : " I am not George Washington, but President of the United States." In his in- dividual capacity he had the right to do any thing he could for his friend, but in his capacity as President he had no right to prostitute his ofiicial powers to gratify his mere j)ersonal feel- ings, or to discharge mere personal obligatious. He Avas the officer of the JSTation, and not the individual, George Wash- ington. But the prostituting and undermining principle, that " to the victors belong the spoils," is itself but a secondary cause, and but the legitimate result of other causes found in the theory of our Government. The defects in our theory which give rise to this vicious maxim, are the short duration of the terms of office, and the re-eligibility of incumbents. Evils which arise from defective theories of government, do not generally manifest themselves in their full force at once. They generally require time for their full maturity ; and the length of time required depends upon circumstances. If we examine the history of our Government, we shall find that the spoils principle was but cjradually introduced ; a very strong proof that it has its origin in our theory itself. At the time AVasliington was elected, parties had not been fully organized. Though the seeds of party division had been sown ill the Xational Convention, aud in the different State CAUSES OF THE CRISIS. 53 Conventions, tliey liad not bad time to mature during the ad- ministration of Washington. Besides this, liis popularity was too decisive to admit of any successful competition. But wlien lie liad retired to private life, and liis successor, tlie elder Adams, had taken liis position, J)arty lines were strictly drawn. Mr. Adams agreed in liis views with "Washington, and made no removals from office upon purely political grounds, there being but nine removals during his term of four years. He was a candidate for re-election, but was defeated by Mr. Jefferson ; and there is reason to believe that his feelings were wounded because he was not permitted to serve for two terms, according to the precedent set by Washington. The contest between the friends of the two was very bitter ; and under the influence of these circumstances, Mr. Adams made some appointments, at the close of his term, which had the appearance of being par- tisan. In reference to which, Mr. Jefferson, in his letter to Elbridge Geny, says : " Mr. Adams's last appointments, when he hnew he was appointing counsellors and aids for me, not for himself, I set aside as fast as depends on me." § 13. The smne subject continued. The election of Mr. Jefferson, it must be conceded, was sub- stantially a revolution of parties ; and he, therefore, found but few of his political friends in office.* The subject of removals gave him much trouble. Li a letter to Mr. Lincoln, his At- torney-general, and written during the first year of his admin- istration, among other things, he says : " I still think our original idea as to office is best ; that is, * There can be no reasonable doubt of the fact that the views of "Washington, Ilamilton, and the elder Adams, were substantially the same in reference to political questions. Hamilton was a great favorite with "Washington, having been one of his aids during the war, and Washington always had the utmost confidence in his judg- ment. The political education of Washington was defective. He had never regularly and thoroughly studied the science of government. But Hamilton had ; and he was, therefore, a thorough statesman. At the age of thirty he was a member of the Con. vention, and he exhibited more true capacity than any other member, if not more than all combined. He was the only delegate who signed the Constitution for the State of Xcw York ; while eight delegates signed for Pennsylvania, and four for Xew Jersey. Washington showed his superior natural capacity by his due appreciation of Haiuilton. 64 CAUSES OF THE CKISIS. to dcj)cnd, for obtaining a just participation, on deaths, resig- nations, and delinquencies. Tliis will least affect the tranquil- lity of the peojple, and prevent their giving in to the suggestion of our enemies, that ours has been a contest for office, and not for principles. This is rather a slow operation, but it is sure, if we pursue it steadily, which, hpwever, has not been done with the undeviating resolution I could have wished. To these means of obtaining a just share in the transaction of public business, shall be added one more, to wit, removal for election- eering activity, or open and industrious opposition to the j)rin- ci]3les of the present Government, legislative and executive. Every officer of the Government may vote at elections according to his. conscience ; but we should betray the cause committed to our care, were we to permit the influence of official patron- age to be used to overthrow that cause." In reply to the remonstrance of the, merchants of JSTew Haven, against the removal of Mr. Goodrich, collector, he says : " "When it is considered that, during the late administration, those who were not of a political set were excluded from all office ; Avhcn, by a steady pursuit of this measure, nearly the whole offices of the United States were monopolized by that set ; when the public sentiment at length declared itself, and burst open the doors of honor and confidence to those whose opinions they approved, was it to be imagined that this monop- oly of office was to be continued in the hands of the minority ? Does it violat-e tJieir equal rigJits to assert the same rights also in the majority? Is it political intolerance to claim ^proportion- ate sliai;e in the direction of public affairs ? If a due particijxi- iion of office is a matter of right, how are vacancies to be ob- tained ? Those by deaths are few, by resignations none. Can any other mode than that by removals bo proposed ? " In the same letter, he says the total exclusion of his friends from office " calls for prompter corrections. I shall correct the procedure, but that done, return loithjoy to that state of things when the only question concerning a candidate shall be, is he honest ? Is he capable ? Is he faithful to the Constitution ? " Mr. Jefferson seems to have acted upon the rules laid down by liim ; for during his entire administration of eight years, there Avcre only forty-two removals. His three successors only , i CAUSES OF TILE CKISIS. 55 made sixteen removals : Madison fire, Monroe nine, and John Quincy Adams two. During the terms of Mr. Monroe, party lines became confined and almost obliterated. It was called " the era of good feeling." In 181G, General Jackson, in his correspondence with Mr. Monroe, said : " Every thing depends on the selection of yonr ministry. In every selection, party and party feeling should be avoided. ITow is the time to exterminate the ononster called party spirit. By selecting characters most conspicuous for their probity, vir- tue, capacity, and firmness, without any regard to party, you will go far to, if not entirely, eradicate those feelings, which, on a former occasion, threw so many obstacles in the way of Gov- ernment ; and perhaps have the pleasure and honor of uniting a people heretofore politically divided. The Chief Magistrate of a great and powerful nation should never indulge in party feeling. His conduct should be liberal and disinterested, always bearing in mind that he acts for the whole aud not a part of the community. By this course you will exalt the national char- acter, and acquire for yourself a name as imperishable as mon- umental marble." But time brings about strange events ; and General Jackson himself afterwards became President, and thus had an oppor- tunity, in his own person, to carry out the principles he had laid down some years before. He, however, found himself con- strained by circumstances to depart from the path recommended to his friend, Mr. Monroe. According to the estimate of Col. Benton, as given in the first volume of his Thirty Yeai's' View, the number of removals from office, during the eight years of President Jackson's administration, was about six hundred and ninety ; leaving still a majority of political opponents in office. Others make the immber of removals much greater. But while it may be true, that a majority left in office by him Avere op- posed to his administration, yet it must be conceded that^ re- movals were generally made in the more important and influen- tial offices. If we compare the importance of the offices filled by his friends, with the importance of those filled by his op- ponents, the preponderance was greatly in favor of his admin- istration. The spoils principle was sedulously cultivated under the 66 CAUSES OF THE CRISIS. administration of Mr. Yan Buren, and lias now become the fixed law of party. "We all remember tlic sad fate of General Harrison-. Tlie old soldier sought shelter under the roof of the late .Judge "Woodbury. " In God's name," said he, " a night of peace and quietness — I am dying for rest. The office-seekers are killing me." In a few days he was dead. "Whether the same cause had any share in producing the death of General Taylor it is difficult to determine. § 13. The same siibject further considered. In the i3rogress of human affairs, great and complex ques- tions must, in the very nature of things, arise, from time to time, under every government, whatever may be its form. In a despotis;n, these questions will be determined by the person at the head of the government, with the aid of his ministers ; but in a representative government, these questions must be decided by persons chosen by the people. For this reason, all great questions of governmental principle or policy, (except in special cases,) must be discussed before the voters, and must lead to party divisions among the people themselves, followed by all the evils flowing from party spirit, unless checked or diminished by some compensating power. Tlie entire executive power of the Federal Government is vested in the office of President. In the very nature of execu- tive power, it must be a unit. For this reason, the power of removal from subordinate executive offices must be placed in the President. To require a formal trial in each particular case, accompanied with its doubtful result and long delays, would so cripple the executive power as to render it inefficient, and its operation unsteady. There must be many cases, perhaps a majority, where the necessity of removal may be palpable to the Presideut ; but, from the strict proof required in foi-mal trials, and the artful efforts of the subordinate to conceal his fault un- der plausible pretences, it might be very difficult to procure a conviction. And to give the President the power of removal, and then clog it with vexatious and impracticable restrictions, would nullify the power given. There must be force, unity, and energy in the Executive ; and to secure these, he must be CAUSES OF THE CKISIS. 57 left witli means commensurate with tlie great ends intended by the creation of the office. Tlie office of President being elective, and for a verv sliort term, frequent revolutions of parties must follow. "When a President of a diffi?rent party comes into office, and finds, as he ■will certainly do, the offices filled by those whose political views difi'er from his own, and who will very naturally be averse to aid him in carrying out his measures, what is he to do ? lie is about to introduce new measures of principle or policy, and can he safely trust the result of the experiment to unfriendly hands ? "Would it be wise to do so ? It would not. "What, then, can he do, but make removals upon mere political grounds ? And when he docs make removals upon such grounds, ho acts upon a principle that inevitably leads, sooner or later, to the practical adoption of the maxim, that " to the victors belong the spoils." We see the truth of this exemplified under the administra- tion of Mr. Jefierson. He assumed that it was the right of both parties to have a due share in the administration of public af- fairs ; and, to give this right eifect, in Ms case, it was necessary to create vacancies by removals for mere political reasons. But this right once conceded, it became, in due time, evident, that when one party under one administration, enjoyed all the offices, the other, on coming into power, had the right to all, to place the two upon an equality. The main principle of Mr. Jefierson necessarily leads to this result. In his letter to Mr. Lincoln, he j^i'oposed removals only for two causes : official delinquency, and active partisanship. But in case officers did their duty, and were not active partisans, how could the necessary number of vacancies be had, in order to give to each party its due share of the offices ? " Tliose by deaths were few, by resignations none." It was also found out, in the course of time, that the subordinate was placed in this predicament, namely : if he refused to exert himself actively for those in power, he was dismissed ; and if he did, he incurred the certainty of dismissal, if the opposite party should be suc- cessful. He, therefore, would most naturally take that course which would escape the certain and immediate danger, and risk that which was uncertain and remote. Under Mr. Jefi'erson's rule, if one President should require his subordinates to take an active part in elections, his successful competitor would be bound 58 CAUSES OF THE CKISIS. to remove all wlio liacl done so. Though Mr. Jefferson attempted to 13 ut limitations to his rule, yet it was based npon the, prin- ciple of removal for mere political reasons ; and he was, in fact, the first President to act substantially upon the same rule, which has since very naturally become general. It being true, that parties must exist under every form of representative government, aspirants for office will necessarily divide themselves between the different parties : some from principle, most from love of office. To succeed, parties must be organized ; and organization requires some one organ through which the party can speak. Hence conventions have become the resort of all parties. In these conventions, aspirants are all required to pledge themselves, in advance, to support the nom- inees. This pledge gives the action of the convention very great force with the party, no matter by what means the nominations may have been brought about. The favorites of the party may have been defeated by unfair means, but still there is no practical remedy. To abandon the nominations, is to insure defeat. The offices being numerous, and the terms very short, the number of aspirants for present nomination, and of expectants for the future, must necessarily be very great. Each aspirant and ex- pectant has his particular friends, and those again their own ; and putting all these together, they form a combination too powerful to be successfully resisted. The defeated aspirants could not, Avith any sort of consistency, themselves become can- didates before the people, after having pledged themselves to support the nominees. Independent candidates may be brought out, professing to be of the same party ; but their motives and principles are subject to great doubt. The nominees and all their friends will accuse the independent candidates of factious opposition, and of a secret desire to defeat the great principles for Avhich tlie party contends. These self-nominated candidates, as they are called, cannot hope to obtain votes from the mem- bers of the ox)posite party ; and even those of their own party who are not aspirants or expectants, and who sincerely object to the nominees, and abhor the nefarious manner in which the nominations were made, are reduced to the alternative of voting for the nominees, or seeing the defeat of their own party prin- ciples. As a choice of evils, they generally, at last, vote the CAUSES OF THE CEISIS. 59 ticket. Tlie result is the defeat of the independent candidates. In time, aspirants and expectants learn to become verj cautious of opposition to nominations. § 14. The same subject further considered. Experience having shown the force of nominations when made, (a nomination being often equivalent to an election,) the greatest efforts of aspirants will be directed to that end. Those who are unscrupulous will, of course, not hesitate to make any promises or combinations deemed necessary to attain success. These promises and combinations can be so adroitly made, that they cannot, at the time, be easily detected. Aspirants of strict integrity and true delicacy, will hesitate to come in competition with the unscrupulous, because they consider themselves as placed in a position where they not only have not an equal chance of success, but where they must, if defeated, suffer the mortification of having been overcome by an unworthy com- petitor, and by unfair means. For example, we will suppose an aspirant for the Presidency, permits his name to go before a national convention. He finds it filled with many who are themselves aspirants for ofiice ; and most of those members who are not, have particular friends who are. He is now dependent upon them for a nomination ; but when elected, they or their friends will, in turn, be dependent upon him for aj)pointments. If they give him their support, it is w^ith the expectation that their services will not be over- looked. But whether any expectation be indulged or not as to 'particidar individuals, all aspirants for office u]ider the new President, will unite in insisting that all political opponents shall be removed, and political friends appointed. The success of the party, they say, requires it. Justice to those who have borne the heat and burden of the day requires it. The other party has done it, so must we. It is the law of party. ]^o party can now succeed without it. And when the new President comes into office, he finds himself overwhelmed with applications for apj)ointments ; and though the condition of the nation be ever so perilous, requir- ing the most prompt and decisive action, he must still consume several weeks of precious time in filling offices with partisan 60 CAUSES OF THE CHISIS. friends ; because lie knows tLe insatiate applicants, like the im- portunate woman mentioned in Scripture, may, by their con- tinnal coming, weary him. The only way to get an opportunity to attend to the most j^ressing wants of the nation, is first to attend to the wishes of individuals. The short term of the office of President, and the re-eligi- bility of the incumbent, keep party spirit always in existence, ever active and vigorous, and hosts of aspirants alM' ays in the field, hungry, hopeful, and clamorous for office. When a new President comes into office, he finds himself committed by a thousand pledges, (often contradictory,) and party expectations innumerable, and generally unreasonable. His time and strength are consumed in vain and useless discussions ; and his views are trammelled, and his official action hampered by his party con- nections. Inform, he is a ruler ; but in fact, he is the slave of office-seekers. The same circumstances that affect him, afi'ect his cabinet and members of Congress. They have no time to become statesmen ; because their time and intellects are mainly exhausted in studying and making political combinations, and in laying out plans for the gratification of their ambition or re- venge. This is the reason why, of late years especially, our public men generally have such warm friends and bitter en- emies. Tlie first are attached by personal obligations, Avhile the second are impelled by personal hate, We see the effect upon the members of nearly every department of the Govern- ment. The House of Representatives has very little dignity, the Senate has much degenerated of late, and the office of Pres- ident itself has not escaped. And when we go from the Pederal to the State Govern- ments, we find substantially the same state of things. The terms of the offices are very short, and the incumbents are re- eligible. The number of aspirants always in the field wiU ne- cessarily be in proportion to the shortness of the terms of office ; because the chances of success will occur more frequently. When an aspirant fails to obtain a nomination at one conven- tion, he has only to Avait a short time for another ; and this keeps him always hopeful and always on hand. For this rea- son, the genuine demagogue is always in favor of short terms. The legitimate eftect of short terms is to swell the number of unscrupiilous aspirants, and to increase the number of delin- CAUSES OF THE CRISIS. 61 queneies in office. "When an aspirant succeeds in obtaining office, lie finds that it has cost him one of his two years' salary to reach the position ; and he is, therefore, powerfully tempted to steal to make up his losses. True, the power of impeachment hangs over him ; but he knows that this power is rarely if ever enforced, because his term is likely to expire before the charges could be investigated, if made ; and that the people, if aware of his delinquency, will comfort themselves with the reflection that his term will soon be out, and they will replace him by a more honest man. But the new incumbent comes into office under the same circumstances, and liable to the same temptations. Even when the officer is honest, he is often, if not generally, rendered weak and vaccillating. If called upon to execute the law upon influential men, or upon any considerable number of voters, he finds himself placed in this perplexing predicament. If he does his duty, he is almost certain to offend a sufficient number of his own party to defeat his renomination. When his name comes before the convention, every other aspirant will be opposed to him, because they will not wish, if nominated, to have their names associated with his. " He is a good fellow," they will say, " and has strictly done his duty ; but he is unfor- tunate, and cannot be elected. It is useless to nominate him. It would defeat the whole ticket." The result is, that the hon- est officer fails because he did his dut}''. Time and oft experi- ence have shown this to be true. The poor officer finds himself placed between two fires. If he does his duty, he is beaten ; and if he does it not, it is still the same. He therefore hesitates, temporizes, and makes efforts to compromise, until he finally renders the law itself ridiculous, and destroys, in the minds of the people, all due respect for it. Wo have seen the efiect of these causes uj^on the action of the national and State execu- tives, and upon the officers of both governments, except the judges of the Federal courts."- * By the second section of the second article of the Constitution, tlie President is made commander-in-chief of the militia of the several States when called into the actual service of the United States ; but by a provision of the eighth section of the first article, the power to appoint the officers is reserved to the States respectively. The idea of giving the chief command to the President, and at the same time leav- ing it in the power of the States to appoint the officers he is required to command, would seem incompatible with due subordination and efficiency. "We now see the efifects of this State power of appointment in the fact that so many mere politicians are G2 CAUSES OF THE CKISIS. Tlie influence of party spirit is potently felt in ail tlio i amiii- cations of society, and lias most materially affected the adminis- tration of justice in our country. Yery few men of wealth or of popularity have been convicted of murder, or other serious offence, in the United States. Hamilton, a wealthy man, was convicted and executed some years ago in Kentucky, for the murder of Dr. Sanderson, another wealthy man ; and Dr. Web- ster, a man of literary reputation, suffered in Massachusetts for the murder of Dr. Parkman, who was a wealthy and prominent man. But the instances have been few ; and none, so far as known, where the murdered victim was an obscure individual, without friends or influence. Of politicians, no instances of conviction are remembered. Partisan influence is powerful ; and of bank and other corporation delinquents, there is not one in a hundred ever punished. Escape is almost, if not entirely, universal. Tlie effect of the short terms of office, and of the re-eligibility of incumbents, is plainly seen in the general licentiousness of the press. All parties, cliques, and prominent aspirants for im portant positions, have their organs, which are under their con- trol, and but reflect the party bitterness and personal feelings of those who dictate the contents and tone of their editorials. These causes have led to a vast increase in the number of news- papers ; but in proportion as the number increases, their char- acter depreciates. § 15. jin elective judiciary. The last conservative element in the State Governments has been destroyed by making the judiciary elective. Since this has been done, candidates for seats uj^on the bench arc nomi- appointed to the most important military positions. Tliis was to have Ijccu expected. The Governors in wliom the power of appointment is vested, hold their offices but for short terms, are eligible for other terms, and of course find it hard to rise above their party friendships and political associations. They will not easily forget the services of those politicians to whose efforts they owe their own positions, and upon whose assist- ance they rely for further promotion or continuance in office. But the deplorable result is, that the army'must bleed, and the country suffer, for the want of military capacity in these officers. The field of battle is no place for mere political combinations. Nothing but genuine merit can bear the test of that stern and rigid trial. CAUSES OF THE CKISIS. 63 nated by political conventions ; and witliout sucli nomination, no candidate could succeed, thougli lie possessed tlie character and qualifications of Chief Justice Marshall. Tlie evils of such a theory are not well understood by the great mass of voters, and cannot be stated but in part here. The essence, however, of all the objections against it, consists in taking judicial questions from the proper forum, and, in 2JraGti- cal effect, submitting them to the discussion of a crowd. The evils of the theory have not yet fully appeared ; but in the jDrogress of time, they will swell to gigantic proportions. The first result will be to place political demagogues upon the bench ; men who, during the canvass, will freely intimate to certain influential parties their opinions U23on certain exciting and important judicial questions, in reference to which there exists a great diversity of interests in the community. And when the candidate becomes the judge, he is still eligible for re-election, always an aspirant upon the bench, and always elec- tioneering. A case comes up before him, where the law is clearly one way, and the opinions and interests of the masses the other way. How is he to decide ? and how will a dema- gogue decide ? If he decides against public opinion, he loses his seat. The question is one in which he is directly and personally concerned ; and he is practically made a judge in his own case, because the practical result, to Jthn, is the same. In sustaining public opinion, for the time he sustains his own immediate interests ; but by the time the next election comes around, public opinion has changed, and he must change with it. Tlie theory of an elective judiciary is studiously designed to subject judges to the greatest temptations, and their strict integ- rity to the severest trials, without any practical or efiicient check ; for when a man without integrity has public opinion to sustain him, he feels pretty safe. The evils of the theory would be manifest to all the world, if the true state of facts could al- ways be known. Suppose, for example, a candidate for a seat upon the bench should pledge himself, in advance, to decide certain judicial questions in a certain way ; and suppose, after election, a case involving the principle should come before him, and the lawyer upon the opposite side should propose to discuss the question. The judge, if candid, should say : " Mr. , I cannot hear argument upon this question, because it would be 64 CAUSES OF THE CRISIS. idle to do so. I liave pledged myself, in advance, to my con- stituents, to decide this question against you, and I nmst keep my pledge to them, though it may be true that you are in the right, and could plainly make it appear. But as the matter 710W stands, this Court does not, in fact, decide cases itself, but simply records the judgments of public opinion for the time being. I am sorry for you and your client ; but I love myself better than I love the law of this case, and I could not have been elected unless I had made the pledge I did ; and I was bound to be elected. That was the great end for which I struggled." * * The history of England shows conclusively that the administration of justice never can be pure until the judges are made independent. So long as the judges of the English Judiciary were removable by the crown, they were its slaves, with a few noble exceptions. During the reign of Henry VIII., Cromwell " asked of the judges whether, if Parliament should condemn a man to die for treason without hearing him, the attain- der could not be disputed ? They answered that it was a dangerous question, and that Parliament should rather set an example to inferior courts by proceeding according to justice. But being pressed to reply by the king's express commandment, they said that an attainder in Parliament, whether the party had been heard or not in his defence, could never be reversed in a court of law." It is remarkable tliat Cromwell was himself the first victim. — (Hallam's Con. His., 28, 29.) As to the judges under Elizabeth, Mr. Hallam says : " I have found it impossible not to anticipate, in more places than one, some of those glaring transgressions of natural as well as positive law, that rendered our courts of justice in cases of treason little better than the caverns of murderers. "Whoever was arraigned at their bar was almost certain to meet a virulent prosecution, a judge hardly distinguishable from the prosecutor except by his ermine, and a passive, pusil- lanimous jury." — (Con. His., 138.) Under James I. the judges were no better. " The courts of justice, it is hardly necessary to say, did not consist of men conscientiously impartial between the king and the subject ; some corrupt with hope of promotion, many more fearful of removal, or awe-struck by the frowns of power." — (Id., 184.) In the case of Peacham, " the king directed Bacon previously to confer with the judges of the King's Bench, one by one, in order to secure their determination for the cro'ivn." The prisoner was convicted, but died in prison. — (Id., 198.) In some few instances, constituting mere exceptions to the general conduct of the judges, they manifested a noble spirit. " They unanimously declared, when Charles I. expressed a desire that Felton, the assassin of the Duke of Buokingliam, might be put to the rack in order to make him discover his accomplices, that the law of England did not allow the use of torture." —(Id., 243.) In the case of Hampden, there were two of the twelve judges who manifested a most intrepid spirit, namely : Ilutton and Croke. Of the latter, Mr. Hallam says : " Croke, whose conduct on the bench in other political questions was not without blemish, had resolved to give judgment for the king, but was withheld by his wife, CAUSES OF THE CRISIS. 65 But even "vrlien tlie judge is immovable, and above the in- fluence of personal considerations, and always ready and willing to lose his seat rather than stultify himself, he is placed in a very delicate and painful position, when his motives are open to plausible and continued suspicion and reproach. The public newspaper press is generally edited by men who have a little legal learning, (a dangerous thing when just enough to mislead,) and will discuss, in their columns, the decisions of the courts, and condemn or approve, as the supposed opinion of their read- ers, or their own inaccurate judgments may dictate. Every ex- traneous and outside influence is brought to bear upon the Court, And not only so, but the judge must necessarily employ much of his time in making political combinations, or he must fail to receive a renomination by the convention of the party to which he himself belongs. Unless he do so^^his opponent, not being on the bench, and against whose judicial opinions nothing can be said, because of them nothing is publicly known, (though, known to the influential few,) will have greatly the advantage over him in the convention. All his opponent has to do to de- feat him, under such circumstances, is to spend about six months' time in bringing out, in difi'erent counties, his own particular friends, as aspirants to seats in the convention. The theory of an elective judiciary not only ultimately, as a general rule, excludes the best men from the bench, and puts political demagogues in tlieir places, but its tendency is to de- grade the bar itself. Although district courts are but subordi- nate tribunals, the judges of these courts have it in their power to favor or oppress particular attorneys to a great extent. When an attorney becomes unpopular with the court, he loses his practice, because parties litigant will not employ him at the who implored him not to sacrifice his conscience for fear of any danger or prejudice to his family, being content to suffer any misery with him, rather than to be an occasion for him to violate his integrity." — (Id., 251, note.) This noble woman, greater than her husband, should be had " in eternal remem- brance." t As to the judges during the reign of Charles 11.," Never were our tribunals so dis- graced by the brutal manners and iniquitous partiality of the bench as in the latter years of this reign." — (Id., 411.) The independence of the judges was secured by the Act of Settlement. Since then " no judge can be dismissed from office, except in consequence of a conviction for some offence, or the address of both houses of Parliament, which is tantamount to an Act of the Legislature."— (Id., 697.) 5 66 CAUSES OF THE CKISIS. risk, real or imaginary, of losing their cases. Tliis state of things has a strong influence npon many members of the pro fession ; and hence they become obsequious flatterers and sup porters of unworthy aspirants. For example, two men are as pirants or candidates for the bench. A is a man above the in fluence of prejudice or revenge ; but B is a man who nevei forgets or forgives an opponent. The members of the bar have to choose between them. The vote is likely to be a close one Each member of the bar puts this dilemma to himself : " If ! vote against A, and he should be elected, I can lose nothing but if I oppose B, and he should be elected, he will never for give the act, though he may never allude to it." Such consid erations will have their influence with many lawyers. It may, with truth, be said, that the members of the bar ar( almost, if not quite, universally opposed to an elective judiciary The writer has never met a lawyer of respectable attainment ^hat did not decidedly condemn the elective theory ; nor has h( met anywhere with many intelligent men of any class or pro fession, that did not agree with the bar in this view. Tin opinion of the bar, upon a question of this character, is justb entitled to great weight. If the members of the profession d( not understand the science of government, they understanc nothing. As a class, they have every reason for sustaining j just, speedy, and economical administration of justice. Errors delays, and extravagant costs, keep parties out of court, and an clearly an injury to the profession. The members of the ba have, therefore, every professional, honorable, and just motiv( to sustain 07ilt/ the best mode of choosing judges. The highe: and purer the administration of justice, the more honorable anc profitable to the noble profession to which they belong. The most intelligent and conservative men in the natior have always known that our theory was but an experiment. They have, therefore, watched its progress with deep concern : and, most imhappily, they have had no cause to put aside theii doubts and fears. The theory has not grown more conservative, (as it should have done,) in proportion as our population in- creased and our territory extended ; but has rapidly and con- tinually grown more and more radical. It seems, in its very nature, to be especially adapted to create and foster mere poli- ticians, while it is death to true statesmen, who, as a genera] CAUSES OF THE CRISIS. 67 iile, are left in private life. And these increasing evils seem admit of no remedy. Tlie j^eople themselves are so hampered .nd carried away by party spirit, that appeals to them are very arely successful. True, they occasionally, at long intervals, irouse themselves, and, in their short-lived wrath, hmd the mere )olitician3 from power ; but these spasmodic efforts readily ex- laust themselves, the waves of public indignation cpiickly sub- ide, and things soon resume their accustomed state. It is like astiug a stone into a stream, which act occasions a temporary )ubblc, and then the current flows on again as ever.* And this state of things is not so much the fault of the peo- )le, as of the theory itself. Men will differ in their views of )olitical questions, and must^ of necessity, divide themselves nto political parties ; and when once so divided, regard to prin- iple and consistency will force even the unaspiring masses to 'ote for persons representing their own views. Hence they are ibliged, by stress of circumstances, to resort to party machinery ; ,nd when they do this, they are compelled, in due time, to be ontrolled by demagogues. " Eternal vigilance," said Mr. Jef- erson, " is the price of liberty ; " but this " eternal vigilance " a attending, so often, both fTimary and final elections, is a ostly effort to the toiling millions ; and though " eternal^'' it is Lot, in itself, competent to detect the secret springs by which onventions are practically moved. * Perhaps no instance in our history more forcibly shows the overpowering influ- Qce which even pubHc prejudice will have over political men under our theory, than the lelancholy case of Alexander Hamilton. Col. Benton justly says : " Hard was the ite of Hamilton." It was hard, indeed ; not so much for the fact that he fell in the rime of life, but that he died in consequence of deliberately committing an act which is conscience and judgment condemned ; and this under the specious pretence of xpediency. He was utterly opposed to duelUng, and yet he fought. In his own ^ords, his reasons were these : " The abihty to be in future useful, whether in resisting mischief or effecting good, 1 those crises of our public aff:iirs which seem likely to happen, would probably be ^separable from a conformity with prejudice in this particular." It is a great misfortune that a great man, in an enlightened age, should reason in bis wa)'. That evi! should be done that good may come of it, is a short-sighted view f principle, as well as of consequences. We can well imderstand how an individual fho regards the practice of duelling as correct in itself, can be engaged in a duel. He cts consistently ; but for a man deliberately to do wrong, simply to satisfy others, hows g eat weakness. Is a community which requires a man to violate his conscien- ious principles worthy to be served by a just man ? A great and good man should be ontent when he is in the right, whether others think so or not ; and no man should ir can be happy, when he violates his own conscience. 68 THE ULTIMATE EEaiEDi. CHAPTER m. , THE ULTIMATE EEMEDY. § 1. The iiUimate remedy stated. A WEiTEK wIlo objects to tilings as tliey are, sliould suggest a remedy for tlie alleged evils to wliicli his objections refer. To simply complain, witbout being able to point out any remedy, is to gratify a mere fault-finding disposition ; and tliis is doing an idle, if not a vicious tiling. Tlie writer will endeavor to comply witli tbe reasonable duty incumbent upon those who make objections. In assigning the alleged defects of our governmental theory, as the fundamental causes of the present crisis in the affairs of the Nation, the proposed ultimate and permanent remedy has been already incidentally suggested. This remedy consists in removing the causes themselves ; and to do this, the theory of the Government must be thoroughly and radically amended. Partial and temporary remedies are deceptive. Tliey may give relief for a time, only to be followed by evils more distressing than ever. We must go back and begin at the beginning, and profit by our later and more dearly-bought experience. It is a rule of logic, that errors should be corrected in the places where they occur. With a fresh, ample, and fertile territory, and, comparatively, a sparse population, and, consequently, a peo23lc generally free from want, and, for that reason, virtuous and in- dependent, our theory succeeded very well at the beginning. But as, in the national progress of things, our circumstances approached the condition of the populations of the Old World, the practical defects of our theory became more and more ap- parent." * Malthus assumes these positions as true : " The increase of population is necessarily limited by the means of subsistence. " Population invariably increases when the means of subsistence increases, unless prevented by powerful and obvious checks. " These checks, and the checks which keep the population down to the level of the means of subsistence, are moral restraint, vice, and misery. " Corn countries are more populous than pasture countries, and rice countries more populous than corn countries." — (Malthus on Population, Tol. i., 532-4.) THE ULTIMATE REMEDY. 69 The tlieoiy slioiikl be amended in these three general re- spects : 1. It should be made more simple. There is no governmental theory in the world so complex as onr own. This is agreed to by all our jurists and statesmen. All avoidable complexity should be excluded from the theory. It should be made as simple as the great and various purposes of government will allow. Government, at best, is a vast and complex machine ; but like the machinery of a great steamship, though complex, it should be harmonious in its operations. 2. It should be made more conservative. The acute and profound Mons. De Tocquevillc, in his able work upon America, very justly says : " In conformity with this principle, America is, at the pres- ent day, the country in the world where laws last the shortest time."— (p. 278.) Few countries have suffered so much from hasty, change- able, and excessive legislation as our own. We have not, in our rushing mad pursuit of objects before us, stopped to secure the steps already taken. Majorities alternate in our country as elscwbere ; and in our theory there are no efficient checks upon the interests and passions of mere majorities, for the time being. Tlie same elegant writer remarks upon this unchecked power of present majorities, as follows : " The majority, therefore, in that country exercise a prodi- gious actual authority, and a moral influence scarcely less pre- ponderant ; no obstacles exist which can impede, or so much as retard its progress, or whicli can induce it to heed tlie com- plaints of those whom it crushes upon its patli. This state of things is fatal in itself and dangerous for the future." — (p. 277.) 3. It should be made stronger. The Federal Government is too weak, and there are too many restrictions upon its powers, in view of the extent of our country, its varied productions, antagonistic interests, and differ- ent domestic institutions. There is' no government less worthy of the respect of mankind, and of the obedience of those whom it mocks with a farcical rule and protection, than that whicli is impotent to accomplish the very ends for which government is alone instituted. A strong government may oppress its people ; 70 TUE ULTIMATE REMEDY. but it, at least, gives tliem protection as agaiust foreign en- emies, and as against each other. " Tlie circumstances," says Hamilton, " that endanger the safety of nations are infinite ; and for this reason, no constitu- tional shackles can wisely be imposed on the power to which the care of it is committed. Tliis power ought to be coextensive with all the possible combinations of such circumstances ; and ought to be under the direction of the councils which are ap- pointed to preside over the common defence." This was said in reference to the power " to raise armies ; to build and equip fleets ; to prescribe rules for the government of both ; to direct their operations ; to provide for their sup- port," In reference to the extent of our territory, he said : " This, at all events, must be evident, that the very diffi- culty itself, drawn from the extent of the country, is the strong- est argument in favor of an energetic government ; for any other can certainly never ]3resei*ve the union of so large an em- im-e:'— {Federalist, l^o 23.) It is very true that these observations of Hamilton were made in answer to the objection, that too much power had been conferred upon the Federal Government by the Constitution. But when it is remembered that he Avas decidedly in favor of a much stronger form of government, his remarks may justly be taken in a more general sense. The heading of the number from which these extracts are taken, is in these words : " The neces- sity of a government, at least equally energetic with the one proposed." The great end to be accomplished, is to combine strength in the Government with security and liberty in the governed, so far as this can be done. To accomplish this end, restrictions upon the powers of government are not generally so safe, and at the same time efficient, as their proper distribution among dif- ferent departments, which act as checks upon each other. " I repeat here," says the same great statesman, " what I have ob- served in substance in another place, that all observations, founded upon the danger of usurpation, ought to be referred to the composition and structure of the government, not to the nature and extent of its i^o^xcvs "—{Federcdist, l^o. 31.) THE ULTIMATE EEMEDY. 71 § 2. Tliere should he no State sovereignty. Tlie States sliould be strictly subordinate corporations, and only permitted to exercise such powers as may be allowed by Congress. In other words, they should possess no sovereignty, in fact or iu theory, and should bear to the Government sub- stantially the same relation that Territorial governments now bear to that of the Union. The acts of their legislatures should be (m\:j 'prhna facie valid, and be subject to the negative of Congress. The Governor of each State should be appointed by the President, by and with the advice and consent of the Senate, and should hold his office at the pleasure of the President. ■ He should have a qualified negative upon the bills of the State Legislature, which should be composed of a Senate and House of Pepresentatives. Members of the State Senate should be elected by the people of their respective senatorial districts, and should hold their positions for life, subject to the right of ex- pulsion by their own body ; and members of the House of Pep- resentatives should be elected by the people of their respective counties, and for a term of four years. The appointment of all subordinate executive and ministerial State officers should be vested in the Governor, except those of municipalities. Such an amendment would relieve our theory of that po- litical monster — a divided sovereignty. Every citizen would then lylainly know the government to which his allegiance was rightfully due. He would not then be placed in the painful and illogical predicament, of having to love and serve two different supremes, of contrary wills. , He could not then, as now, by the same act, commit two different offences ; and thus be subjected to double punishment. It would then be out of the power of fathers to teach their sons, and of politicians to persuade the people, that their superior allegiance was due to the State, Pebellion would then be plain^ umnista'ka'ble rebellion ; and not, as now, a forcible attempt upon plausible grounds, to sus- tain alleged Constitutional rights. Tlie theory of our Govern- ment would then be simple. It would be harmonious in theory and practice. The vast amount of time heretofore consumed, in all the Courts and Legislative Assemblies, State and National, and by our law wi'iters, politicians, and statesmen, in discussing the 72 'nm ULTIMATE REMEDY. multiplied and peq^lexing questions, continually arising, re- garding tlie respective constitutional powers of the Federal and State Governments, would then be saved. Any one who will examine the subject, will see the amount of labor, time, and intellect heretofore consumed in these discussions. Should the present theory continue half a century longer, it is difficult to conceive how Congress and the Federal Courts could possibly despatch the business before them. This evil has become one of great magnitude. ^ This illogical attempt to divide sovereignty, has mainly given rise to the bitter and intemperate discussions in Con- gress, so injurious to our feelings as a people, and to our honor at home and abroad. It has also led to the most deplorable results among the people themselves. Their bitterness is but the reflection of that engendered in Congress and in the State Legislatures. Grievances, real or imaginary, will arise from time to time, under the best, and the best administered govern- ment in the world. Even measures substantially just under the circumstances, will bear harder upon one .class, or upon one section, than upon ^ another. Tliese partial evils cannot be avoided by human wisdom. This being true, the misfortune of our theory is, that these evils can generally be plausibly imputed to violations of the Constitution — to encroachments upon State rights — to an inva- sion of State sovereignty. And when a citizen is once convinced that the Constitutional rights of his State have been invaded, he feels indignant ; and when satisfied .that this invasion has been deliberate, and continued for any considerable period of time, and that it will, in all probability, become permanent, all his energies and resentments are aroused, his soul is stirred within him, and his hatred of his supposed oj^pressor becomes, in time, so intense, that he is ready to die a martyr to that which ho believes to be the right. Tliese temptations to forcible resistance, under the name of defending the Constitution, should be removed. "\Ye should have a governmental theory, simple and clear enough in its main features — those that arc fundamental — so that the good sense of every man can understand, at least, what officers he is bound to obey. "We should not be left in doubt as to our right- ful master. We are ready to give due obedience. It is both THE ULTIMATE KElMEDy. 73 our interest and our duty. Our judgments and our hearts tell us so. We are willing and anxious to be governed ; because yvG regard legitimate government, not as a curse, but as a bless- ing. But give us only one master. "We cannot have and serve two. § 3. The Executive Poioer. Tlie Executive power of the Nation should be vested in a President, who should be a native citizen of the United States, and be elected by a direct vote of the people. He should hold his office for a term of twenty years, be ineligible for a second term, incapable of holding any other office, and subject to re- moval by impeachment. All officers appointed by him, except judicial, should hold their offices during his pleasure. He should have, besides, the right to demand the written opinions of all heads of departments, a Cabinet to consist of the Secre- taries of State, of the Treasury, and of War, and the Attorney- general, who should be entitled to seats in the House of Kepre- sentatives, but without the right to vote. . In addition to the other powers conferred upon him by the present Constitution, and those mentioned above, he should have the power to de- clare martial law, and to suspend the privilege of the wi'it of Jicibeas coi'pus^ for a limited period, during the recess of Con- gress. It maybe objected, and with much reason, that an elective Executive can never entirely escape from the influence of those aspirants for office under him, to whose efforts he is mainly in- debted for his own elevation to power ; and that an hereditary Executive is the only one that can avoid the influence of party spirit, as he comes into office without pledges or obligations, either expressed or implied. It may also be said, that an elec- tive theory is more apt to give rise to frequent civil wars. It must be conceded that both theories are liable to some objections. The theory of an hereditary Executive is certain to place in power a greater number of incompetent and unworthy persons. The history of France, England, and other monarchies will show, that the hereditary theory does not lessen the dan- gers of civil war. Frequent and bloody civil wars have oc- curred in struggles for the succession. Questions of legitimacy often arise, exceedingly difficult to determine. Governments 7i THE ULTIMATE EEMEDY. Lave been perplexed, and nations wasted, becanse it could not be certainly known, wlietlier a particular marriage was legal or otherwise. If legal, one claimant would be the rightful heir to tJie crown ; if illegal, then the other. These discussions are often of a very painful and indelicate character ; and every correct theory of government should give no cause for them. Besides, the danger of civil war, under the theory of an elective Executive, arises mainly from the fact, that the incum- bent is eligible for another term. lie being a candidate for another term, and being in possession of the office, and in com- mand of the army and navy, and these being large in proportion to the entire j)opulation, and the race being sufficiently close to give rise to plausible doubt as to which competitor is really en- titled to the office, it is easy, in such cases, to make charges of fraud in the election ; and, as fraud vitiates every thing, a plaus- ible case may be made out by the incumbent, who will not hesitate to use his power over the army and navy, and over his party friends, to retain power. But when the incumbent is plainly limited to a single term, this danger cannot arise from any defect in the theory. It would be a case of ])lain usur- jyation. A very grave and serious objection to the theory of an he- reditary Executive is, that the people are often made to bleed and suffer, simply to gratify the pride and personal resentment of the monarch. Tlie pages of history are full of such instances. Eoyal families necessarily connect themselves with those of other countries by marriage, and thus form family alliances, often very detrimental to their own governments. It will be obvious, upon reflection, that the long term of the Presidential office, will avoid most of the evils of the present theory. It must be conceded, that candidates for that office would most likely be nominated by conventions, as heretofore ; but the futility of requiring asj)irants to commit themselves so long in advance, to any particular line of policy, must be ap- parent. The long term would more likely lead to the selection of better men. Tlie new President, when once in power, is placed in an independent position, has no hopes of future pro- motion himself, and no plausible excuse for sweei^ing removals, for mere political reasons. The long term before him will allow him to wait for vacancies occasioned by deaths, resignations. THE ULTIMATE REMEDY. • 75 and removals for cause. The operation of the executive power ■would be steady, energetic, and consistent. The President M'ould have time to deliberately adopt and successfully carry out his measures. The power of impeachment vrould not only be the more promptly enforced, but the fear of forfeiting his long term of office, would deter even an incumbent of doubtful integrity from any gross violation of duty. Tlie theory of long terms of office has these very decisive advantages : 1. It gives the incumbent ample time to make himself thoroughly ac- quainted with the duties of his position ; 2. It removes the temptation to delinquency ; 3. It is a powerful check upon it. A President placed in that secure position would have noth- ing to fear while he did right. He would have ample time and opportunity to make himself a true statesman, and every motive to lay a solid foundation for deserved and enduring fame, in a vigorous, honest, and wise administration. The mere passions and excitements of the hour would not often influence his action. Placed above party trammels, and beyond the reach of party and sectional prejudice, his administration would not only be good in itself, but it would command the confidence and respect of the people, from the absence of all motive to do wrong. Un- der the practical operation of such a theory, we should have every reason to expect a long succession of illustrious men in the highest office in the world. It is a matter of great practical importance, that the ordi- nary advisory body of the Executive should not be too large ; because it is not safe to intrust the keeping of Cabinet secrets to many persons ; and it is not convenient to assemble and consult so many as often as may be required. Even large advisory bodies move slowly. It is also of great practical importance that members of the Cabinet should be allowed seats in the House of Eepresentatives, so that the President may propose his measures through them, and sustain those measures by ar- gument and explanation. In legislating for a great nation, time is very important, and moments become valuable. Every facil- ity, therefore, for expediting business, and for the conviction and prevention of errors in legislation, should be adopted. Tlie members of the Cabinet, being familiar .with the views of the President, could at once, in many cases, afford that information, which it now requires resolution of inquiry to obtain. So, the 76 THE ULTIMATE REMEDY. members of tlie Cabinet, being also acquainted "with the prac- tical operation of tlie laws, tlie business of the principal depart- ments, and the existing state of legislation, would be more com- petent to draw up bills for many purposes, than the regular members themselves. Many of the perplexing errors now found in Acts of Congress would be thus avoided. There is nothing more difficult than to frame a bill upon a complex subject, and yet have the bill full, clear, concise, and consistent. In a country so extensive and diversified as ours, it is im- portant to the national safety, and the best ultimate humanity, that the President should have the power to declare martial law, and to suspend the privilege of the writ of habeas corpus, in cases of invasion, insurrection, rebellion, and for a limited time, during the recess of Congress. The late distressing events in our country, have shown the wisdom and necessity of such a provision. There is no means more efficient, and at the same time more humane in suppressing insurrection or rebellion, than the power of promptly arresting and imprisoning suspected in- dividuals. It separates the leaders to whom the secrets of the plot are alone confided, confuses their plans of operation, dis- pirits their adherents, and often prevents the dire necessity of shedding blood. In the midst of military operations, there is no time to issue writs of habeas corpus, and calmly investigate the alleged causes of imprisonment. ISTo doubt mistakes and abuses must and will occur, and innocent j)ersous sufter for a time. But when the peace and safety of the government are at stake, individuals had better suft^er temporary wrong, in some cases, than that a greater evil should befal an entire community. The maxim of the law, that it is better that ninety-nine guilty should escape, than that one innocent person should suffer, is often carried too far, and is not applicable to the extreme case where the nation is in peril. It is very true that the English people are so jealous of their personal liberty, that the power to sus^^end the privilege of the writ of habeas corpus is alone reserved to Parliament. (1 Black. Com. 136.) But the reasons for this restriction upon the powers of the crown would not exist with us. Tlie king holds his crown for life, with succession to Ids heirs, and is not criminally re- "^ponsible for any act vjhatever. Tlie English Constitution leaves him without sufficient checks, and with many induce- THE ULTIilATE EEMEDT. 'TT ments to increase Lis powers. In tlie liands of the cro'^vn, the power of suspension would be higlily dangerous. But the Pres- ident would hold his office for a single term, without succession, and subject to im^icachment. lie would, therefore, have no motive for the wilful abuse of the power, and the danger of im- peachment would operate as a powerful check upon him. There can be no doubt that, under the existing Constitution, the power of suspension is alone vested in Congress. This is conclusively shown by Chief Justice Taney, in his opinion de- livered in the late case of ex parte John Merryman. As a judge, the Chief Justice could only declare the law as it is / not as, in his opinion, it should l>e. But the necessity for the existence of this power in the President, during the recess of Congress, has led to violations of the present Constitution by some of our military officers, whose acts have been overlooked upon the ground of necessity. But the plea of necessity is a dangerous precedent to indulge under a government of limited powers. It may be said by some, that it would be better for the President to hold his office during good behavior, rather than for the long and fixed term of twenty years. But this is objec- tionable, because it makes the periods of election irregular. The people should always know with certainty, and long in ad- vance, when they are to exercise the j)rivilege of electing their President. They would thus have ample time for discussion and reflection. Besides, it would become necessary that the vacancy should be filled temporarily, until the result of the election could be known ; and this would increase the interrup- tions in the administration of this department, and render its policy more fluctuating and unsteady. The A^ice-President should possess the same qualifications, and be elected at the same time, and for the same term, as the President. The Vice-President should possess the powers con- ferred upon the office by the present Constitution. Provisions for filling vacancies in the office of President and Yice-President should be the same as at present. § 4. The Legislative Power. The Legislative power should be vested in a Congress, to consist of a Senate and House of Eepresentatives. Members T8 THE ULTIilATE EEMEDY. of the Senate should be chosen in the mode now adopted, bnt should retain their seats for life, subject to expulsion by their own body, and should be incapable of holding any other posi- tion. Members of the House should be elected by the people of their respective districts for the term of four years. The Senate and House should possess the same relative powers as at present. A Senate thus composed would b^ the most dignified, illus- trious, and justly conservative body in the world. The mem- bers would have ample time and opportunity, and every induce- ment, to make of themselves true statesmen. Their attention would not be occupied with conflicts between duty and ambi- tion. They would have but one thing to do, and would be be- yond the reach of passion, prejudice, or personal interest. Tlieir fame could only be based upon real merit. JSTo political combinations could add any thing to their reputations. To be a life-long and distinguished member of such a body would be ample to gratify reasonable ambition. Such a body would be superior to the English House of Lords, in several material respects : 1. The House of Lords represents only certain classes of the conservative element of the nation, while the Senate would represent all. 2. The House of Lords, as a body, would be inferior in capacity, owing to the elements of which it is composed. The hereditary peers are not generally distinguished for ability. The same is true of the Bishops, whose profession does not make them practical states- men. The provision that renders Senators incaj^able of all further promotion, is a very important one, and would not only exclude all topics of personal dispute, but would give the action of such a venerable body the most deserved weight Avitli the people. There being no motive of interest or feeling to sway the judg- ment of Senators, (a majority of whom would, at all times, 230ssess ample character, experience, and capacity,) there could, in most cases, be no plausible ground for objection to their ac- tion. Every man in the nation would have just reason to re- pose confidence in such a body of statesmen. The time of that body would not be consumed, as now, in discussing the political pretensions and antecedents of aspiring Senators for the Presi- THE ULTIMATE REMEDY. 79 dencj, and often in fierce personal quarrels. Tlie cause being removed, the nielanclioly effect would cease. '^^ The members of the House of Eepresentatives ^vould be fresh from the people, and ■would, therefore, represent the progressive * The history of the proceedings of the Senate will show a number of cases where Senators were evidently influenced, to a great extent, by personal ambition. Perhaps the most noted case was the rejection of Mr. Van Buren as minister to England. Col. Benton, in his Thirty Years' View, gives the secret history of that rejection ; according to which account the leading motive of those who voted against the nomination was the desire to kill off a competitor for the Presidency, who was in the way of Messrs. Clay, Calhoun, and Webster. " Rejection of the nomination was not enough — a killing oft" in the public mind was Intended ; and therefore the unusual process of the elaborate preparation and the intended publication of the speeches." All the speakers abjured all sinister motives. " The acccomplished Forsyth complimented, In a way to be per- fectly understood, this excess of patriotism, which could voluntarily inflict so much self-distress for the sake of the public good ; and I, most unwittingly, brought the misery of one of the gentlemen to a sudden and ridiculous conclusion by a qhance re- mark. It was Mr. Gabriel Moore, of Alabama, who sat near me, and to whom I said, when the vote was declared : ' You have broken a minister, and elected a Vice-Pres- ident.' He asked me how ; and I told him the people would sec nothing in it but a combination of rivals against a competitor, and would pull them all down and set hira up. ' Good God ! ' said he, ' why didn't you tell me that before I voted, and I would have voted the other way.' " In Mr. Moore's speech, only delivered a few moments before this. Is to be found this passage : " Sir, it is proper that I should declare that the evidence adduced against the character and conduct of the late Secretary of State, and the sources from which this evidence emanates, have made an Impression on my mind that will require of me, in the conscientious though painful discharge of my duty, to record my vote against his nomination.' I heard Mr. Calhoun say to one of his doubting friends, ' It will kill him, sir — kill him dead. He will never kick, sir — never kick ! ' and the alacrity with which he gave the casting votes, on the two occasions, both vital, on which they were put into his hands, attested the sincerity of his belief, and his readiness for the work." A tie vote was purposely produced twice, by the surplus votes against the nomination going out, and Mr. Calhoun, then being Vice- President, was thus compelled to give the casting vote and show his position. In ref- erence to this case. Col. Benton also says : " The famous Madame Roland, when mounting the scaffold, apostrophized the mock statue upon it with this exclamation : ' Oh Liberty ! how many crimes are com- mitted in thy name ! ' After what I have seen during my thirty years of inside and outside views in the Congress of the United States, I feel qualified to paraphrase the apostrophe, and exclaim : ' Oh Politics ! how much bamboozling is practised in thy game ! ' " — (Thirty Years' View, vol. i., 214.) But whether we give full credence to the history of this transaction or not, as given by Col. Benton, Senators (especially all those known or supposed to have aspirations for further promotion) are placed in a very delicate and embarrassing position. In cases like the one mentioned, there may be ample reason for rejecting the nomination ; and yet Senators would be deterred from so voting, because it would subject their mo- tives to plausible imputation, and in the end promote the political rise of the unworthy nominee. 80 TUE ULTIMATE KEMEDT. element of tlic nation. The term, of four years would seem preferable to that, of two, as it would give members a reasonable time to make themselves fully acquainted with the rules of the House, and the exising state of legislation. The present term of two years is too short, considering the extent of our country and the complex character of its diversified interests. A mem- ber can now scarcely prepare himself so as j)roperly to introduce his measures before his time is out.* A body constituted as the House of Representatives, is in- dispensably necessary to arouse the attention and quicken the action of the conservative branch. There is great practical dan- ger that, without this fresh, young, and vigorous body, the Senate would become too conservative. But as the Senate would have every motive to do right, and none to do wrong, the persistent assertion of true principles and the advocacy of correct measures on the part of the House, could not fail, in. due time, to secure the consent of the Senate. The correctness of this opinion is proven by the history of English legislation, where the House of Lords, from the nature of its structure and composition, is more apt to be swayed by the interests and habits of particular classes than would be the Senate ; and for that reason, offers a greater obstacle to the passage of just and liberal measures. It required some forty years' hard exertion of Earl Grey and Major Cartwright to carry British Parlia- mentary reform, and long-continued exertions to carry Catholic emanci]3ation, corn-law repeal, abolition of the slave-trade, and other great "measures. But the Senate, from its composition, would be much more susceptible to the appeals of reason and justice. § 5. The Judiciary. The judges of all the more important courts of record should be appointed by the President, by and with the advice and con- sent of the Senate ; and the judges of the courts of inferior im- * " Sliort service and not popular election, is the evil of the House of Picprosenta- tives ; and this becomes more apparent by contrast — contrast between the North and the South — the caucus, or rotatory system, not prevailing in the South, and useful members being usually coatinucd from that quarter as long as useful ; and thus, with fewer members, usually showing a greater number of men who have attained a distinc- tion." — (Thirty Years' View, vol. i., 207.) THE ULTIMATE EEMEDY. 81 portanco by tlie Governors of the States, by and witli the advice and consent of the State Senates. Both classes of judges should hold their offices during good behavior, and be subject to re- moval from office by impeachment. The judges of the Supreme Court of the United States should be incapable of holding any other position. A seat upon the bench of that Court should be held sufficient to satisfy human ambition. A Supreme Court, thus constituted, would be superior to the Court of Eang's Bench in England. Though the judges there have now fixed salaries, and are not removable at the pleasure of the crown as formerly, they are subject to removal simply upon the address of both Houses of Parliament, and are under the influence of the hope of future promotion. In refer- ence to the English j iidges, Mr. Ilallam remarks : " It is always to be kept in mind that they are still accessi- ble to the hope of further promotion, to the zeal of political at- tachment, to the flattery of princes and ministers ; that the bias of their prejudices, as elderly and peaceable men, will, in a plu- rality of cases, be on the side of power ; that they have very frequently been trained, as advocates, to vindicate every pro- ceeding of the crown ; from all which we should look on them with some little vigilance, and not come hastily to the conclu- sion that, because their commissions cannot be vacated by the crown's authority, they are wholly out of the reach of its influ- ence."— (Con. His., 597.) § 6. Salaries. Tlie President, the heads of the Executive departments, judges of the Courts, and members of Congress, should receive fixed salaries, which should not be increased or diminished dur- ing the term for which they were appointed. As to the salaries of the President, heads of dejDartments, and judges of the Courts, the Constitution itself should provide that they should be paid out of the first moneys in the Treasury, without the necessity of any appropriation by Congress for that purpose. Tliis provision is important to render the Executive and Ju- dicial departments independent of a factious House of Pepre- sentatives ; as in this House all revenue and appropriation bills would originate, a factious majority of its members, driven by 6 82 THE ULTIMATE KEMEDY. jDarty exasperation, might witliliold the appropriations for the other departmeats. It is well to remove this temptation from the House. One department should not have the power over the means of living of the principal officers of the other two. The verj object of a Constitutional theory is to distribute the powers of Government among independent departments. There- fore, to make one department dependent upon another is to defeat the very purpose of a free Constitution. § 7. Slavery. This vexed question has been so much discussed, and often in a spirit so bitter, and so intense a feeling now exists in refer- ence to it, that but a single remark seems proper under this head. "Whatever settlement of the question should be finally adopted, should be plainly stated in the Constitution ; and when thus stated, both sections of the Union might rely, with entire confidence, that the guarantees of the Constitution would be faithfully preserved, by a Government constituted as the one proposed. § 8. Conclusion. The causes which are alleged to have produced the present crisis, and the proposed ultimate remedy, have now been stated. Though the question of slavery has often been placed in the foreground, it is but a secondary, and not a fundamental cause. Had that question constituted the fundamental difficulty, more earnest efforts would have been made to settle it. But the best minds in the nation have lost faith in the practical efficiency of our present governmental theory ; and this being true, men of capacity and conscience would not throw their whole hearts and minds into a futile effort to patch up a theory that they be- lieved could not stand. They would not violate their con- sciences, and peril their just reputations with posterity, by com- mitting themselves to a position which they fully believed to be idle and false. Without claiming the slightest right to sj)eak for the members of the bar, the simple ojjinion is given, that nine out of every ten have lost faith in our theory. The following remarks of De Tocqueville upon the existing theory, will show what a distinguished foreigner, not unfriendly to our people, thinks of it : THE ULTIMATE EEMEDT. 83 " Tlie Americans determined that the members of the Legis- lature should be elected by the people immediately, and for a very brief term, in order to subject them not only to the general convictions, but even to the daily passions of their constituents. " When an individual or a party is wronged in the United States, to whom can he apply for redress ? If to public opinion, public opinion constitutes the majority ; if to the Legislature, it represents the majority, and implicitly obeys its instructions ; if to the executive power, it is appointed by the majority, and is a passive tool in its hands ; the public troops consist of the majority under arms ; the jury is the majority invested M'ith the right of hearing judicial cases ; and in certain States even the judges are elected by the majority. However iniquitous or ab- surd the evil of which you complain may be, you must submit to it as well as you can." — (Pp. 275, 282.) Men, if they wish to govern, or be governed in peace and prosperity, must themselves be willing to* submit to that which is just in itself. The mere passions and interested judgments both of majorities and minorities, must be restrained within proper limits. He who is in the majority to-day, and assists in opposing the minority, may to-morrow be in the minority, and be himself the victim. There is no ground ujpon which all can meet, hut that of justice. But as men, for many reasons, differ as much as to what is just under certain circimistances as to any other questions, it becomes indispensable to have some authority to peacefully determine the controversy. All that a correct theory of government can do, is to provide tribunals that will not only act justly, but avoid even the appearance of injustice. Men will submit quietly, and even willingly, to the decisions of officers whose motives they are satisfied are pure. They will sooner forgive an error of judgment than a wilful wrong. When a theory of government is so constituted as to remove all tempt- ation to do wrong by those in power, and thus leave no plausi- ble ground for the imputation of interested or impure motives, it has done all that a theory of government can well do. It is respectfully submitted, that the theory herein pro]30sed will accomplish this. It is democratic, yet conservative — free, and yet not anarchical — strong, and yet not tyrannical. It is provided with ample checks upon abuses ; and yet every class in the nation can be heard in its councils. It proposes to secure 84 THE ULTIMATE KEMEDT. the honesty of ofBcers, by the simple and effectual method of removing the temptation to do wrong. Human virtue is always most secure in the absence of temptation. There is a clear distinction between the Union and the ex- isting Constitution. The first is of the utmost importance. Its permanent dissolution would be the greatest of political misfor- tunes ; because it would, in its ultimate results, involve all other political evils. It would be better to have despotism with the Union, than despotism without it. The great Washington had every reason for his intense devotion to the Union. ^'■His devotion was a rational one^ And as to the Constitution, though defective, it should be 'inost faithfully carried out, in its true s]3irit, until amended. Every violation of the Constitution is but a long step towards the utter and entire destruction of all theories of limited governments. It would be much better to submit patiently to any temporary evils arising from defects in the Constitution, rather than violate any of its provisions. Plain violations of that fundamental law, which all officers are sworn to support, are fatal precedents, alike destructive of pub- lic and private virtue. "We are now engaged in a terrible revolution, the precise termination of which no one can foresee. "We can only speak of probabilities, not certainties. It is not probable that it will terminate in a permanent dissolution of the Union. It is most probable that there will be alternate successes and defeats on both sides, until both parties are well-nigh exhausted ; and then they will be prepared to begin again at the beginning, and re- lay the foundation of our political edifice in a more practical and consistent theory of government. There is some danger that extreme exhaustion may hurry our people either into a des- potism or a limited monarchy.* Men are prone to pass rapidly from one extreme to the other. But there is great reliance to be f)laced in the practical good sense of the American people. Trusting in that good sense, these views are submitted to their candid consideration. * There is a plain distinction between a limited monarchy and a government of limited powers. Tlie powers of the English crown are limited, and this makes it a limited monarchy. But the powers of that gorcrnment itself are vested in the king and Parliament ; and these, taken tor/ciher, have no limits, except those of physical impossibility. APPENDIX. CONCEENING DANGERS FROM TVAR BETWEEN THE STATES. From the Federalist, No. VI. By xVlexandek Hamilton. The tliree last numbers of this work liave been dedicated to an enumera- tion of the dangers to which we shall be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dan- gers of a different, and perhaps still more alarming kind ; those which will, in all probability, flow from dissensions between the States themselves, and from domestic factions and convulsions. These have been already, in some instances, slightly anticipated ; but they deserve a more particular and more full investigation. If these States should either be wholly disunited, or only united in partial confederacies, a man must be far gone in Utopian speculations, who can seri- ously doubt that the subdivisions into which they might be tlirown would have frequent and violent contests with each other. To presume a want of motives for sucb contests, as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious. To look for a contin- uation of harmony between a number of independent, unconnected sover- eignties, situated in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages. The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society. Of this description are the love of power, or the desii-e of pre- eminence and dominion — the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed, though an equally operative influence within their spheres ; such are the rivalships and competi- tions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions ; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed ; and, assuming the pretext of 86 APPENDIX. some public motive, have not scrupled to sacrifice tlic national tranquillity to personal advantage, or personal gratification. The celebrated Pericles, in compliance with the resentment of a prostitute,* at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the Samnians. The same man, stimu- lated by private pique against the Magarensians, another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice in a supposed theft of the statuary I^hulias, or to get rid of the accusations pre- pared to be brought against hira for dissipating the funds of the state in the purchase of popularity, or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the Peloponnesian war ; which, after various vicissi- tudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth. The ambitious cardinal, who was prime minister to Henry YIIL, permit- ting his vanity to aspire to the triple crown, entertained hopes of succeeding in the acquisition of that splended prize by the influence of the emperor Charles Y. To secure the favor and interest of this enterprising and power- ful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign v/ho bid fair to realize the project of universal monarchy, it was the emperor Charles V., of whose in- trigues Wolsey was at once the instrument and the dupe. The influence which the bigotry of one female,t the petulance of another,f and the cabals of a third,§ had in the cotemporary policy, ferments, and pacifications, of a considerable part of Europe, are topics that have been too often descanted upon not to be generally known. To multiply examples of the agency of personal considerations in the pro- duction of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances ; and those who have a toler- able knowledge of human nature, will not stand in need of such lights, to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shats had not been a desperate deltor, it is much to be doubted whether Massachusetts would have been plunged into a civil war. But notwithstanding the concurring testimony of experience, in this par- ticular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other — the genius of republics, say they, is pacific ; the spirit of commerce has a tendency to soften the manners * AsPASiA : vide PLUTAUcn's life of Pericles. t Madame de Maintenon. J Duchess of Marlborough. § Madame de Pompadour. APPENDIX. 87 of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of nmtual amity and concord. "We may ask these projectors in politics, whether it is not the true interest of all nations to cultivate the same benevolent and philosophic spirit ? If this be their true interest, have they, in fact, pursued it ? lias it not, on the contrary, invariably been found that momentary passions, and immediate interests, liave a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice ? Have republics in practice been less addicted to war than monarchies? Are not the former administered by men as well as the latter ? Are there not aversions, predi- lections, rivalships, and desires of unjust acquisition, that affect nations as well as kings ? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propen- sities ? Is it not well known, that their determinations are often governed by a few individuals in whom they place confidence, and that they are, of course, liable to be tinctured by the passions and views of those individuals ? Has commerce hitherto done any thing more than changed the objects of war ? Is not the love of wealth as domineering and enterprising a passion as that of power or glory ? Have there not been as many wars founded upon connncrcial motives, since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion ? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other ? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries. Sparta, Athens, Eome, and Carthage, were all republics ; two of them, Athens and Carthage, of the commercial kind. Yet were they as often en- gaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a well-regulated camp ; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor, in the very war that ended in her destruction. Hannibal had carried her arms into the heart of Italy, and even to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of the commonwealth. Venice, in latter times, figured more than once in wars of ambition ; till, becoming an object of terror to the other Italian states, Pope Julius the Second found means to accomplish that formidable league,* which gave a deadly blow to the power and pride of that haughty republic. The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious * The Leagce of Cambhat, comprehending the emperor, the King of France, the King of Arragon, and most of the Italian princes and States. 88 APPENDIX. contests -with England for the dominion of the sea ; and were among tlie most persevering and most implacable of the opponents of Louis XIV. In the government of Bi'itain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Yet few nations have been more fre- quently engaged in war ; and the wars in which that kingdom has been en- gaged, have in numerous instances proceeded from the people. There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of their representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inchnations, and sometimes contrary to the real interests of the State. In that memorable struggle for superiority between the rival houses of Austria and Bourbon., lyhich so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice of a favorite leader,* protracted the war be- yond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court. The wars of these two last-mentioned nations have in a great measure grown out of commercial considerations ; the desire of supplanting, and the fear of being supplanted, either in particular branches of traiBc, or iu the general advantages of trade and navigation; and sometimes even the more culpable desire of sharing in the commerce of other nations, without their consent. The last war but two between Britain and Spain sprang from the at- tempts of the English merchants to prosecute an illicit trade with the Spanish main. These unjustifiable practices, on their part, produced severities on the part of the Spaniards towards the subjects of Great Britain, which were not more justifiable ; because they exceeded the bounds of a just retaliation and were chargeable Avith inhumanity and cruelty. Many of the English who were taken on the Spanish coasts Avere sent to dig in the mines of Potosi ; and, by the usual progress of a spirit of resentment, the innocent were after a while confounded with the guilty in indiscriminate punishment. The com- plaints of the merchants kindled a violent flame throughout the nation, which soon after broke out in the Ilouse of Commons and was communicated from that body to the Ministry. Letters of reprisal were granted, and a war ensued, which, in its consequences, overthrew all the alliances that but twenty years before had been formed, with sanguine expectations of the most beneficial fruits. From this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which woifld seduce us into the expecta- tion of peace and cordiality between the members of the present confederacy in a state of separation ? Uave we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, the weaknesses, and the evils inci- dent to society in every shape ? Is it not time to awake from the deceitful • * The Duke of Marlborough. APPENDIX. 89 dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct, that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue ? Let the point of extreme depression to which our national dignity and credit have sunk ; let the inconveniences felt everywhere from a lax and ill- admiuistration of Government ; let the revolt of a part of the State of North Carolina ; the late menacing disturbances in Pennsylvania, and the actual in- surrections and rebellions in Massachusetts, declare ! So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostil- ity between the States, in the event of disunion, that it has from long obser- vation of the progress of society become a sort of axiom in politics, that vi- cinity or nearness of situation constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect : " Neigh- BORiKG Nations (says he) are naturally enemies of each other, unless their common weakness forces them to league in a confederative eepublio, and their constitution prevents the differences that neighborhood occasions, extin- guishing that secret jealousy which disposes all States to aggrandize them- selves at the expense of their neighbors."* This passage, at the same time, points out the evil,, and suggests the remedy. Pdblius. THE EFFECTS OF INTERNAL WAR IN PRODUCING STANDING ARMIES, AND OTHER INSTITUTIONS UNFRIENDLY TO LIBERTY. From tho Federalht, No. VIII. By Alexander Hamilton. AssiTMiNG it therefore as an established truth, that, in case of disunion, the several States, or such combinations of them as might happen to be formed out of the wreck of the general confederacy, would be subject to those vicissitudes of peace and war, of friendship and enmity with each other, wliich have fallen to the lot of all neighboring nations not united under one government, let us enter into a concise detail of some of the consequences that would attend such a situation. "War between the States, in the first periods of their separate existence, would be accompanied with much greater distresses than it commonly is in those countries where regular military establishments have long obtained. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests imprac- ticable, and of preventing that rapid desolation which used to mark the progress of war prior to their introduction. The art of fortification has con- tributed to the same ends. The nations of Europe are encircled with chains * Tide Principles des Negotiations par I'Abbe de Mably. 90 APPENDIX. of fortified places, -n-liicli mutually obstruct invasion. Campaigns are wasted in reducing two or tlirco frontier garrisons, to gain admittance into an enemy's country. Similar impediments occur at every step, to exhaust the strength and delay the progress of an invader. Formerly an invading army would penetrate into the heart of a neighboring country, almost as soon as intelligence of its approach coidd be received ; but now, a comparatively small force of disciplined troops, acting on the defensive, with the aid of posts, is able to impede, and finally to frustrate, the enterprises of one much more considerable. The history of war in that quarter of the globe is no longer a history of nations subdued and empires overturned ; but of towns taken and retaken, of battles that decide nothing, of retreats more beneficial than victories, of much efi"ort and little acquisition. In this country, the scene would be altogether reversed. The jealousy of military establishments, would postpone them as long as possible. The want of fortifications, leaving the frontiers of one State open to another, would facilitate inroads. The populous States would, with little diSiculty, overrun their less populous neighbors. Conquests would be as easy to be made, as difficult to be retained. "War, therefore, would be desultory and predatory. Plunder and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits. This picture is not too highly wrought ; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property, incident to war ; the continual cflFort and alarm attendant on a state of con- tinual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free. The institutions chiefly alluded to are standing aemies, and the corre- spondent appendages of military establishments. Standing armies, it is said, are not provided against in the new constitution ; and it is thence inferred that they would exist under it.* Tliis inference, from the very form of the proposition, is, at best, problematical and uncertain. But staxdixg aemies, it may be replied, must inevitably result from a dissolution of the confederacy. Frequent war, and constant apprehension, which require a state of as con- stant preparation, will infallibly produce them. The weaker States, or con- federacies, would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and efi'ectivc system of defence, by disciplined troops, and by fortifications. They would, at the same time, be obliged to strengthen the executive arm of government ; in doing which, their constitutions would acquire a progressive direction * This objection will be fully examined in its proper place ; .md it will be shown that the only rational precaution which could have been taken on this subject, has been taken ; and a much better one than is to be found in any constitution that has been hei'c- toforc framed in America, most of which contain no guard at all on this subject. APPENDIX. 91 towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority. The expedients which have been mentioned would soon give the States, or confederacies, that made use of them, a superiority over their neighbors. Small States, or States of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large States, or States of greater natural strength, which have been destitute of these advantages. Neither the pride, nor the safety, of the more important States, or confederacies, -would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost pre- eminence. Thus we should, in a little time, see established, in every part of this country, the same engines of despotism which have been the scourge of the old world. This, at least, would be the natural course of things ; and our reasonings will be likely to be just, in proportion as they are accommodated to this standard. These are not vague inferences deduced from speculative defects in a con- stitution, the whole power of -which is lodged in the hands of the people, or their representatives and delegates ; they are solid conclusions, drawn from the natural and necessary progress of human affairs. It may perhaps be asked, by way of objection, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece ? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agricul- ture and commerce, are incompatible -with the condition of a nation of sol- diers, which was the true condition of the people of those republics. The means of revenue, -which have been so greatly multiplied by the increase of gold and silver, and of the arts of industry and of the science of finance, which is the offspring of modern times, concurring -with the habits of nations, have produced an entire revolution in the system of -war, and have rendered disci- plined armies, distinct from the body of the citizens, the inseparable com- panion of frequent hostility. There is a wide difference, also, between military establishments in a country -which, by its situation, is seldom exposed to invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have no good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defence, the people are in no danger of being broken to military sub- ordination. The laws are not accustomed to relaxations in favor of military exigencies ; the civil state remains in full vigor, neither corrupted, nor con- founded with the principles or propensities of the other State. The smaUness of the army forbids competition with the natural strength of the community, and the citizens, not habituated to look up to the military power for protec- tion, or to submit to its oppressions, neither love nor fear the soldiery : they view them with a spirit of jealous acquiescence in a necessary evil, and stand 92 APPENDIX. ready to resist a power which they suppose may be exerted to the prejudice of their rights. TIio army, under such circumstances, tliough it may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection, will be utterly incompetent to the purpose of enforcing encroachments against the united efforts of the great body of the people. But in a country where the perpetual menacings of danger oblige the gov- ernment to be always prepared to repel it, her armies must be numerous enough for instant defence. The continual necessity for his services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The in- habitants of territories often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights ; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them as masters is neither remote nor diffi- cult : but it is very difficult to prevail upon a people under such impressions to make a bold or effectual resistance to usurpations supported by the military power. The kingdom of Great Britain falls within the first description. An insu- lar situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent till the militia could have time to rally and embody, is all that has been deemed requisite. ISTo motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its do- mestic establishment. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty Avhich that country to this day enjoys, in spite of the prevalent venality and corruption. If Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would, in all probability, at this day, be a victim to the absolute power of a single man. It is possible, though not easy, for the people of that island to be enslaved from other causes ; but it cannot be by the prowess of an araiy so inconsider- able as that which has been usually kept up within the kingdom. If we are wise enough to preserve the Union, we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great dis- tance from us. Her colonies in our vicinity will be likely to continue too much disproportionate in strength, to be able to give us any dangerous an- noyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe. Our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other. APPENDIX. 93 This is an idea not superficial nor futile, but solid and weighty. It de- serves the most serious and mature consideration of every prudent and honest man, of whatever party : if such men will make a firm and solemn pause, and meditate dispassionately on its vast importance ; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that now fiit before the distempered imaginations of some of its adversaries, would then quickly give place to the more substantial prospects of dangers, real, certain, and extremely formidable. Publitts. THE END. THE AMEKICAN THEOTiY OF GOVERNMENT CONSIDERED j WITH REFERENCE TO THE PRESENT CRISIS. BY TETER H. BURNETT. " I bad ratber be right than be President."— HExny Clay. s. . NEW YORK: D. APPLETON & CO., 443 & 445 BROADWAY. LONDON: IG LITTLE BRITAIN. 1861. D. Appleton & Company's Publications. REVOLUTIONS IN EN^GLISH HISTOEY BY EGBERT VAUGHAN, D. D. VOL. I. REVOLUTIONS OF RAGE. I^mCE $3. In this work, Dr. Vaughax, the Editor of the British Quarterly Review, intends to group together the leading facts of English History, so as to reveal at a glance the progress of the nation. It is a step towards the simplification of English History. By the term Revolutions, the author intends to denote the great phases of change, through which both the government and people of England have passed, during the historical period of their existence. " A work of this kind," says Blaekmood's Magazine, " cannot be superfluous, if it is wortliilv executed ; and the honorable position which Dr. Yaughan has earned for himself in both theology and literature, gives us a guarantee that this will be the case. The specimen before us we have read with interest and improvement. We should particularize the ecclesiastical portion of the History as being executed with especial care, and as remarkable for the spirit of justice and liberality he displays. To these pages we may honestly recommend the reader, as the fruit of steady and conscientious labor, directed by a liberal and enlightened spirit." "This treatise," says the London Athenceum, " or rather narrative, is deeply and variously interesting. Written plainly, but with all the characteristics of independent thought and accomplished scholarship, it may be pronounced a masterly survey of English civilization from the remotest epoch to the commencement of the fifteenth cen- tury. We have found this volume in every way excellent. It is at once a narrative and a disquisition, learned, genial, critical, and also picturesque. The spirit of English history animates it throughout. Dr. Vaughan, by completing such a work, will have done good service to literature." The Westminster Review, the very highest critical authority upon English literature, ?aid of this work, upon its original publication in England — "We can sincerely recom- mend Dr. Vaughan's Revolutions in English History as a thoughtful, interesting, scholarly presentment of the principal sociological vicissitudes of more than two thousand years of our British existence. Dr. Vaughan's composition is extremely lucid and nervous; not without a certain sedate ornamentation, but quite free from the misleading exaggerations of a seductive i-hetoric. ' D. AppUton d Co.''a Publieationt. HISTORY OF FRANCE, From the Earliest "rimes to MDCCCXLFUL Br tbe REV. JA.TIES ^THITE, A-utlior of the " SJigliteen. Christian Centiaries." ONE VOLUME, OCTAVO. 571 PAGES. $2. This History aims at something higher than a mere epitome of events. While it gives tlie results from its author's mind of Iiis various reading rather than the abstracts of what }ie read, it yet devotes sufficient space to any occurrences which seem to have a general bearing on the progress or character of the nation. It is believed to be more especially adapted to the benefit of general readers who are anxions forhistorical as well iis other kinds of knowledge, but who, in respect to tne History of France, are repelled from the attempt to acquire it by tlie dryness of the narrative and the uninteresting style of the smaller volumes devoted to the subject, and by the time and labor required for the perusal of the more extensive and valuable works. Tliis book has had the highest commendation from the British critical press generally. Speaking of its conciseness and attractive style, the Athenaeum says : " Its 600 pages contain every leading incident worth the telling, and abound in word painting, whereof a paragraph has often as much active life in it as one of those inch-square etch- ings of tlie great- Callot, in which m;iy be clearly seen whole armies contendii>g in bloody arbitrament, and as muny incidents of battle as may be gazed at in the miles of <'anvass in the military picture galleries nt Versailles. * * Especially skilful is Mr. White in the depicting of the great revolutions of France, and their consequences," THE HISTORY OF HERODOTUS. A NEW ENGLISH VERSION, EDITED WITH COPIOUS NOTES AND APPENDICES, ILLUSTRATING THE HISTORY AND GEOGRAPHY OP HERODOTUS, FROM THE MOST RECENT SOURCES OF INFORMATION; AND EMBODYING THE CHIEF RESULTS, HISTORICAL AND ETHNOGRAPHICAL, WHICH HAVE BEEN OBTAINED IN THE PROGRESS OF CUNEIFORM ^ND HIKROGLYPII- ICAL DI-COVERY. BY GEORGE RAWLINSON, M. A., LATE FELLOW AND TUTOR OF EXETER COLLEGE. OXFORD, ASSISTED BY COL. SIR HENRY KAWLINSON, K. 0. B., AND SIR J. G. WILKINSON, F. R. S. WITH MAPS AND ILLUSTRATIONS. FOUR VOLUMES, OCTAVO. $10. The object of this work .is to present the English reader with a correct yet free translation, and to collect and methodize the chief illustrations of the author, which modern learning and research have accumulated. Parallel with the progress of the work, a series of fresh discoveries have been made upon its (to us) more important sub- jects— the ethno^'raphy of the East, and the history and geography of Babylonia and Assyria. The results o1 these discoveries, up to the latest, have been incorporated in the illustrative part of the work — great pjirt of it having been from lime to time re-writ- ten, as new light has been thrown upon doubtful points. This feature, together wi'h the labor of scholarship given to the tasK, renders th« work one of the niout vul