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Congress shall make no law as to the establishment of any religion, or prohibiting the free exercise thereof; and also that it shall not abridge the freedom of speech, or of the press, or of petition.-The Government, however, as is well known, has taken upon itself to abridge the freedom of the press.-The right of the people to bear arms shall not be infringed. Then follow various clauses intended for the security of the people in reference to the administration of the laws. They shall not be troubled by unreasonable searches. They shall not be made to answer for great offences except by indictment of a grand jury. They shall not be put twice in jeopardy for the same offence. They shall not be compelled to give evidence against themselves. Private property shall not be taken for public use without compensation. Accused persons in criminal proceedings shall be entitled to speedy and public trial. They shall be confronted with the witnesses against them, and shall have assistance of counsel. Suits in which the value controverted is above 20 dollars (47.) shall be tried before juries. Excessive bail shall not be required, nor cruel and unusual punishments inflicted. In all which enactments we see, I think, a close resemblance to those which have been time-honoured among ourselves.
The remaining amendments apply to the mode in which the President and Vice-President shall be elected, and of them I have already spoken.
The constitution is signed by Washington as President,-as President and Deputy from Virginia. It is signed by deputies from all the other States, except Rhode Island. Among the signatures is that of Alexander Hamilton, from New York; of Franklin, heading a crowd in Pennsylvania, in the capital of which State the convention was held; and that of James Madison, the future President, from Virginia.
In the beginning of this chapter I have spoken of the splendid results attained by those who drew up the constitution; and then, as though in opposition to the praise thus given to their work, I have insisted throughout the chapter both on the insufficiency of the constitution and on the breaches to which it has been subjected. I have declared my opinion that it is inefficient for some of its required purposes, and have said that, whether inefficient or efficient, it has been broken and in some degree abandoned. I maintain, however, that in this I have not contradicted myself. A boy, who declares his purpose of learning the Eneid by heart, will be held as being successful if at the end of the given period he can repeat eleven books
out of the twelve. Nevertheless the reporter, in summing up the achievement, is bound to declare that that other book has not been learned. Under this constitution of which I have been speaking, the American people have achieved much material success and great political power. As a people they have been happy and prosperous. Their freedom has been secured to them, and for a period of seventy-five years they have lived and prospered without subjection to any form of tyranny. This in itself is much, and should, I think, be held as a preparation for greater things to follow. Such, I think, should be our opinion, although the nation is at present burdened by so heavy a load of troubles. That any written constitution should serve its purposes and maintain its authority in a nation for a dozen years is in itself much for its framers. Where are now the constitutions which were written for France? But this constitution has so wound itself into the affections of the people, has become a mark for such reverence and love, has, after a trial of three quarters of a century, so recommended itself to the judgment of men, that the difficulty consists in touching it, not in keeping it. Eighteen or twenty millions of people who have lived under it,-in what way do they regard it? Is not that the best evidence that can be had respecting it? Is it to them an old woman's story, a useless parchment, a thing of old words at which all must now smile? Heaven mend them, if they reverence it more, as I fear they do, than they reverence their Bible. For them, after seventy-five years of trial, it has almost the weight of inspiration. In this respect,-with reference to this worship of the work of their forefathers, they may be in error. But that very error goes far to prove the excellence of the code. When a man has walked for six months over stony ways in the same boots, he will be believed when he says that his boots are good boots. No assertion to the contrary from any bystander will receive credence, even though it be shown that a stitch or two has come undone, and that some required purpose has not effectually been carried out. The boots have carried the man over his stony_roads for six months, and they must be good boots. And so I say that the constitution must be a good constitution.
As to that positive breach of the constitution which has, as I maintain, been committed by the present Government, although I have been at some trouble to prove it, I must own that I do not think very much of it. It is to be lamented, but the evil admits, I think, of easy repair. It has happened at a period of unwonted difficulty, when the minds of men were in
tent rather on the support of that nationality which guarantees their liberties, than on the enjoyment of those liberties themselves, and the fault may be pardoned if it be acknowledged. But it is essential that it should be acknowledged. In such a matter as that there should at any rate be no doubt. Now, in this very year of the rebellion, it may be well that no clamour against Government should arise from the people, and thus add to the difficulties of the nation. But it will be bad, indeed, for the nation if such a fault shall have been committed by this Government and shall be allowed to pass unacknowledged, unrebuked,—as though it were a virtue and no fault. I cannot but think that the time will soon come in which Mr. Seward's reading of the constitution and Mr. Lincoln's assumption of illegal power under that reading will receive a different construction in the States than that put upon it by Mr. Binney.
But I have admitted that the constitution itself is not perfect. It seems to me that it requires to be amended on two separate points;-especially on two; and I cannot but acknowledge that there would be great difficulty in making such amendments. That matter of direct taxation is the first. As to that I shall speak again in referring to the financial position of the country. I think, however, that it must be admitted, in any discussion held on the constitution of the United States, that the theory of taxation as there laid down will not suffice for the wants of a great nation. If the States are to maintain their ground as a great national power, they must agree among themselves to bear the cost of such greatness. While a custom duty was sufficient for the public wants of the United States, this fault in the constitution was not felt. But now that standing armies have been inaugurated, that iron-clad ships are held as desirable, that a great national debt has been founded, custom duties will suffice no longer, nor will excise duties suffice. Direct taxation must be levied, and such taxation cannot be fairly levied without a change in the constitution. But such a change may be made in direct accordance with the spirit of the constitution, and the necessity for such an alteration cannot be held as proving any inefficiency in the original document for the purposes originally required.
As regards the other point which seems to me to require amendment, I must acknowledge that I am about to express simply my own opinion. Should Americans read what I write, they may probably say that I am recommending them to adopt the blunders made by the English in their practice of government. Englishmen, on the other hand, may not improbably
conceive that a system which works well here under a monarchy, would absolutely fail under a presidency of four years' duration. Nevertheless I will venture to suggest that the government of the United States would be improved in all respects, if the gentlemen forming the President's cabinet were admitted to seats in Congress. At present they are virtually irresponsible. They are constitutionally little more than head clerks. This was all very well while the Government of the United States was as yet a small thing; but now it is no longer a small thing. The President himself cannot do all, nor can he be, in truth, responsible for all. A cabinet, such as is our cabinet, is necessary to him. Such a cabinet does exist, and the members of it take upon themselves the honours which are given to our cabinet ministers. But they are exempted from all that parliamentary contact which, in fact, gives to our cabinet ministers their adroitness, their responsibility, and their position in the country. On this subject also I must say another word or two further on.
But how am I to excuse the constitution on those points as to which it has, as I have said, fallen through,-in respect to which it has shown itself to be inefficient by the weakness of its own words? Seeing that all the executive power is intrusted to the President, it is especially necessary that the choice of the President should be guarded by constitutional enactments; -that the President should be chosen in such a manner as may seem best to the concentrated wisdom of the country. The President is placed in his seat for four years. For that term he is irremovable. He acts without any majority in either of the legislative Houses. He must state reasons for his conduct, but he is not responsible for those reasons. His own judgment is his sole guide. No desire of the people can turn him out; nor need he fear any clamour from the press. If an officer so high in power be needed, at any rate the choice of such an officer should be made with the greatest care. The constitution has decreed how such care should be exercised, but the constitution has not been able to maintain its own decree. The constituted electors of the President have become a mere name; and that officer is chosen by popular election, in opposition to the intention of those who framed the constitution. The effect of this may be seen in the characters of the men so chosen. Washington, Jefferson, Madison, the two Adamses, and Jackson were the owners of names that have become known in history. They were men who have left their marks behind them. Those in Europe who have read of anything, have read of them.
Americans, whether as republicans they admire Washington and the Adamses, or as democrats hold by Jefferson, Madison, and Jackson, do not at any rate blush for their old Presidents. But who has heard of Polk, of Pierce, and of Buchanan? What American is proud of them? In the old days the name of a future President might be surmised. He would probably be a man honoured in the nation; but who now can make a guess as to the next President? In one respect a guess may be made with some safety. The next President will be a man whose name has as yet offended no one by its prominence. But one requisite is essential for a President; he must be a man whom none as yet have delighted to honour.
This has come of universal suffrage; and seeing that it has come in spite of the constitution, and not by the constitution, it is very bad. Nor in saying this am I speaking my own conviction so much as that of all educated Americans with whom I have discussed the subject. At the present moment universal suffrage is not popular. Those who are the highest among the people certainly do not love it. I doubt whether the masses of the people have ever craved it. It has been introduced into the Presidential elections by men called politicians-by men who have made it a matter of trade to dabble in state affairs, and who have gradually learned to see how the constitutional law, with reference to the Presidential electors, could be set aside without any positive breach of the constitution.*
Whether or no any backward step can now be taken,whether these elections can again be put into the hands of men fit to exercise a choice in such a matter,-may well be doubted. Facilis descensus Averni. But the recovery of the downward steps is very difficult. On that subject, however, I hardly venture here to give an opinion. I only declare what has been done, and express my belief that it has not been done in conformity with the wishes of the people,--as it certainly has not been done in conformity with the intention of the constitution.
In another matter a departure has been made from the conservative spirit of the constitution. This departure is equally grave with the other, but it is one which certainly does admit
* On this matter one of the best, and best informed Americans that I have known told me that he differed from me. "It introduced itself," said he. "It was the result of social and political forces. Election of the President by popular choice became a necessity." The meaning of this is, that in regard to their Presidential elections the United States drifted into universal suffrage. I do not know that this theory is one more comfortable for his country than my own.