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The American Republic

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In addition to these, the General government is clothed with the
treaty-making power, and the whole charge of the foreign
relations of the country; with power to admit new States into
the Union; to dispose of and make all needful rules and
regulations concerning the territory and all other property
belonging to the United States; to declare, with certain
restrictions, the punishment of treason, the constitution itself
defining what is treason against the United States; and to
propose, or to call, on the application of the legislatures of
two-thirds of all the states, a convention for proposing
amendments to this constitution; and is vested with supreme
judicial power, original or appellate, in all cases of law and
equity arising under this constitution, the laws of the United
States, and treaties made or to be made under their authority,
in all cases affecting ambassadors, other public ministers, and
consuls, in all cases of admiralty and maritime jurisdiction, in
all controversies to which the United States shall be a party,
all controversies between two or more States, between a State
and citizens of another State, between citizens of different
States, between citizens of the same State claiming lands under
grants of different States, and between a State or the citizens
thereof and foreign states, citizens, or subjects.

These, with what is incidental to them, and what is necessary
and proper to carry them into effect, are all the positive
powers with which the convention vests the General government,
or government of the United States, as distinguished from the
governments of the particular States; and these, with the
exception of what relates to the district in which it has its
seat, and places of forts, magazines, &c., are of a general
nature, and restricted to the common relations and interests of
the people, or at least to interests and relations which extend
beyond the limits of a particular State. They are all powers
that regard matters which extend beyond not only the individual
citizen, but the individual State, and affect alike the
relations and interests of all the States, or matters which
cannot be disposed of by a State government without the exercise
of extra-territorial jurisdiction. They give the government no
jurisdiction of questions which affect individuals or citizens
only in their private and domestic relations which lie wholly
within a particular State. The General government does not
legislate concerning private rights, whether of persons or
things, the tenure of real estate, marriage, dower, inheritance,
wills, the transferrence or transmission of property, real or
personal; it can charter no private corporations, out of the
District of Columbia, for business, literary, scientific, or
eleemosynary purposes, establish no schools, found no colleges
or universities, and promote science and the useful arts only by
securing to authors and inventors for a time the exclusive right
to their writings and discoveries. The United States Bank was
manifestly unconstitutional, as probably are the present
so-called national banks. The United States Bank was a private
or particular corporation, and the present national banks are
only corporations of the same sort, though organized under a
general law. The pretence that they are established to supply a
national currency, does not save their constitutionality, for
the convention has not given the General government the power
nor imposed on it the duty of furnishing a national currency.
To coin money, and regulate the value thereof, is something very
different from authorizing private companies to issue bank
notes, on the basis of the public stocks held as private
property, or even on what is called a specie basis. To claim
the power under the general welfare clause would be a simple
mockery of good sense. It is no more for the general welfare
than any other successful private business. The private welfare
of each is, no doubt, for the welfare of all, but not therefore
is it the "general welfare," for what is private, particular in
its nature, is not and cannot be general. To understand by
general welfare that which is for the individual welfare of all
or the greater number, would be to claim for the General
government all the powers of government, and to deny that very
division of powers which is the crowning merit of the American
system. The general welfare, by the very force of the words
themselves, means the common as distinguished from the private
or individual welfare. The system of national banks may or may
not be a good and desirable system, but it is difficult to
understand the constitutional power of the General government to
establish it.

On the ground that its powers are general, not particular, the
General government has no power to lay a protective tariff. It
can lay a tariff for revenue, not for protection of home
manufactures or home industry; for the interests fostered, even
though indirectly advantageous to the whole people, are in their
nature private or particular, not general interests, and chiefly
interests of private corporations and capitalists. Their
incidental or even consequential effects do not change their
direct and essential nature. So with domestic slavery. Slavery
comes under the head of private rights, whether regarded on the
side of the master or on the side of the slave. The right of a
citizen to hold a slave, if a right at all, is the private right
of property, and the right of the slave to his freedom is a
private and personal right, and neither is placed under the
safeguard of the General government, which has nowhere, unless
in the District of Columbia and the places over which it has
exclusive legislative power in all cases whatsoever, either the
right to establish it or to abolish it, except perhaps under the
war power, as a military necessity, an indemnity for the past,
or a security for the future.

This applies to what are called Territories as well as to the
States. The right of the government to govern the Territories
in regard to private and particular rights and interests, is
derived from no express grant of power, and is held only ex
necessitate--the United States owning the domain, and there
being no other authority competent to govern them. But, as in
the case of all powers held ex necessitate, the power is
restricted to the absolute necessity in the case. What are
called Territorial governments, to distinguish them from the
State governments, are only provisional governments, and can
touch private rights and interests no further than is necessary
to preserve order and prepare the way for the organization and
installation of a regular State government. Till then the law
governing private rights is the law that was in force, if any
such there was, when the territory became by purchase, by
conquest, or by treaty, attached to the domain of the United
States.

Hence the Supreme Court declared unconstitutional the ordinance
of l787, prohibiting slavery in what was called the territory of
the Northwest, and the so-called Missouri Compromise,
prohibiting slavery north of the parallel 36' 30'. The Wilmot
proviso was for the same reason unconstitutional. The General
government never had and has not any power to exclude slavery
from the Territories, any more than to abolish it in the States.
But slavery being a local institution, sustained neither by the
law of nature nor the law of nations, no citizen migrating from
a slave State could carry his slaves with him, and hold them as
slaves in the Territory. Rights enacted by local law are rights
only in that locality, and slaves carried by their masters into
a slave State even, are free, unless the State into which they
are carried enacts to the contrary. The only persons that could
be held as slaves in a Territory would be those who were slaves
or the children of those who were slaves in the Territory when
it passed to the United States. The whole controversy on,
slavery in the Territories, and which culminated in the civil
war, was wholly unnecessary, and never could have occurred had
the constitution been properly understood and adhered to by both
sides. True, Congress could not exclude slavery from the
Territory, but neither could citizens migrating to them hold
slaves in them; and so really slavery was virtually excluded,
for the inhabitants in nearly all of them, not emigrants from
the States after the cession to the United States, were too few
to be counted.

The General government has power to establish a uniform rule of
naturalization, to which all the States must conform, and it was
very proper that it should have this power, so as to prevent one
State from gaining by its naturalization laws an undue advantage
over another; but the General government has itself no power to
naturalize a single foreigner, or in any case to say who shall
or who shall not be citizens, either of a State or of the United
States, or to declare who may or may not be electors even of its
own officers. The convention ordains that members of the house
of representatives shall be chosen by electors who have the
qualifications requisite for electors of the most numerous
branch of the State legislature, but the State determines these
qualifications, and who do or do not possess them; that the
senators shall be chosen by the State legislatures, and that the
electors of President and Vice-President shall be appointed in
such manner as the respective State legislatures may direct. The
whole question of citizenship, what shall or shall not be the
qualifications of electors, who shall or shall not be freemen, is
reserved to the, States, as coming under the head of personal or
private rights and franchises. In practice, the exact line of
demarcation may not always have been strictly observed either by
the General government or by the State governments; but a
careful study of the constitution cannot fail to show that the
division of powers is the division or distinction between the
public and general relations and interests, rights and duties of
the people, and their private and particular relations and
interests, rights and duties. As these two classes of relations
and interests, rights and duties, though distinguishable, are
really inseparable in nature, it follows that the two governments
are essential to the existence of a complete government, or to
the existence of a real government in its plenitude and
integrity. Left to either alone, the people would have only an
incomplete, an initial, or inchoate government. The General
government is the complement of the State governments, and the
State governments are the complement of the General government.

The consideration of the powers denied by the convention to the
General government and to the State governments respectively,
will lead to the same conclusion. To the General government is
denied expressly or by necessary implication all jurisdiction in
matters of private rights and interests, and to the State
government is denied all jurisdiction in right, or interests
which extend, as has been said, beyond the boundaries of the
State. "No State shall enter into any treaty, alliance, or
confederation; grant letters of marque and reprisal; coin money,
emit bills of credit, make any thing but gold and silver coin a
tender in the payment of debts; pass any bill of attainder, ex
post facto law, or law impairing the obligation of contracts, or
grant any title of nobility. No State shall, without the
consent of Congress, lay any imposts or duties on imports or
exports, except what may be absolutely necessary for executing
its inspection laws and the net produce of all duties and
imposts laid by any State on imports and exports shall be for the
use of the treasury of the United States, and all such laws
shall be subject to the revision and control of Congress. No
State shall, without the consent of Congress, lay any duty of
tonnage, keep troops or ships-of-war in time of peace, enter into
any agreement or compact with another State or with a foreign
power, or engage in war, unless actually invaded, or in such
imminent danger as will not admit of delay."

The powers denied to the States in some matters which are rather
private and particular, such as bills of attainder, ex post
facto laws, laws impairing the obligation of contracts, granting
titles of nobility, are denied equally to the General government.
There is evidently a profound logic in the constitution, and
there is not a single provision in it that is arbitrary, or
anomalous, or that does not harmonize dialectically with the
whole, and with the real constitution of the American people. At
first sight the reservation to the State of the appointment of
the officers of the militia might seem an anomaly; but as the
whole subject of internal police belongs to the State, it should
have some military force at its command. The subject of
bankruptcies, also, might seem to be more properly within the
province of the State, and so it would be if commerce between the
several States had not been placed under Congress, or if trade
were confined to the citizens of the State and within its
boundaries; but as such is not the case, it was necessary to
place it under the General government, in order that laws on the
subject might be uniform throughout the Union, and that the
citizens of all the States, and foreigners trading with them,
should be placed on an equal footing, and have the same remedies.
The subject follows naturally in the train of commerce, for
bankruptcies, as understood at the time, were confined to the
mercantile class, bankers, and brokers; and since the regulation
of commerce, foreign and inter-state, was to be placed under the
sole charge of the General government, it was necessary that
bankruptcy should be included. The subject of patents is placed
under the General government, though the patent is a private
right, because it was the will of the convention that the patent
should be good in all the States, as affording more encouragement
to science and the useful arts than if good only within a single
State, or if the power were left to each State to recognize or
not patents granted by another. The right created, though
private in its nature, is Yet general or common to all the States
in its enjoyment or exercise.

The division of the powers of government between a General
government and particular governments, rendered possible and
practicable by the original constitution of the people
themselves, as one people existing and acting through State
organizations, is the American method of guarding against the
undue centralism to which Roman imperialism inevitably tends;
and it is far simpler and more effective than any of the
European systems of mixed governments, which seek their end by
organizing an antagonism of interests or classes. The American
method demands no such antagonism, no neutralizing of one social
force by another, but avails itself of all the forces of society,
organizes them dialectically, not antagonistically, and thus
protects with, equal efficiency both public authority and
private rights. The General government can never oppress the
people as individuals, or abridge their private rights or
personal freedom and independence, because these are not within
its jurisdiction, but are placed in charge, within each State,
of the State government, which, within its sphere, governs as
supremely as the General government: the State governments
cannot weaken the public authority of the nation or oppress the
people in their general rights and interests, for these are
withdrawn from State jurisdiction, and placed under charge of a
General government, which, in its sphere, governs as supremely as
the State government. There is no resort to a system of checks
and balances; there is no restraint on power, and no systematic
distrust of power, but simply a division of powers between two
co-ordinate governments, distinct but inseparable, moving in
distinct spheres, but in the same direction, or to a common end.
The system is no invention of man, is no creation of the
convention, but is given us by Providence in the living
constitution of the American people. The merit of the statesmen
of 1787 is that they did not destroy or deface the work of
Providence, but accepted it, and organized the government in
harmony with the real orders the real elements given them. They
suffered themselves in all their positive substantial work to be
governed by reality, not by theories and speculations. In this
they proved themselves statesmen, and their work survives; and
the republic, laugh as sciolists may, is, for the present and
future, the model republic--as much so as was Rome in her day;
and it is not simply national pride nor American self-conceit
that pronounces its establishment the beginning of a new and
more advanced order of civilization; such is really the fact.

The only apparently weak point in the system is in the
particular States themselves. Feudalism protected the feudal
aristocracy effectively for a time against both the king and the
people, but left the king and the, people without protection
against the aristocracy, and hence it fell. It was not adequate
to the wants of civil society, did not harmonize all social
elements, and protect all social and individual rights and
interests, and therefore could not but fail. The General
government takes care of public authority and rights; the State
protects private rights and personal freedom as against the
General government: but what protects the citizens in their
private rights, their personal freedom and independence, against
the particular State government? Universal suffrage, answers
the democrat. Armed with the ballot, more powerful than the
sword, each citizen is able to protect himself. But this is
theory, not reality. If it were true, the division of the
powers of government between two co-ordinate, governments would
be of no practical importance. Experience does not sustain the
theory, and the power of the ballot to protect the individual
may be rendered ineffective by the tyranny of party. Experience
proves that the ballot is far less effective in securing the
freedom and independence of the individual citizen than is
commonly pretended. The ballot of an isolated individual counts
for nothing. The individual, though armed with the ballot, is
as powerless, if he stands alone, as if he had it not. To
render it of any avail he must associate himself with a party,
and look for his success in the success of his party; and to
secure the success of his party, he must give up to it his own
private convictions and free will. In practice, individuals are
nothing individually, and parties are every thing. Even the
suppression of the late rebellion, and the support of the
Administration in doing it, was made a party question, and the
government found the leaders of the party opposed to the
Republican party an obstacle hardly less difficult to surmount
than the chiefs of the armies of the so-called Confederate
States.

Parties are formed, one hardly knows how, and controlled, no one
knows by whom; but usually by demagogues, men who have some
private or personal purposes, for which they wish, through party
to use the government. Parties have no conscience, no
responsibility, and their very reason of being is, the
usurpation and concentration of power. The real practical
tendency of universal suffrage is to democratic, instead of an
imperial, centralism. What is to guard against this centralism?
Not universal suffrage, for that tends to create it;, and if the
government is left to it, the government becomes practically the
will of an ever shifting and irresponsible majority. Is the
remedy in written or paper constitutions? Party can break
through them, and by making the judges elective by party, for
short terms, and re-eligible, can do so with impunity. In
several of the States, the dominant majority have gained the
power to govern at will, without any let or hindrance. Besides,
constitutions can be altered, and have been altered, very nearly
at the will of the majority. No mere paper constitutions are
any protection against the usurpations of party, for party will
always grasp all the power it can.

Yet the evil is not so great as it seems, for in most of the
States the principle of division of powers is carried into the
bosom of the State itself; in some States further than in
others, but in all it obtains to some extent. In what are
called the New England States, the best governed portion of the
Union, each town is a corporation, having important powers and
the charge of all purely local matters--chooses its own
officers, manages its own finances, takes charge of its own
poor, of its own roads and bridges, and of the education of its
own children. Between these corporations and the State
government are the counties, that take charge of another class
of interests, more general than those under the charge of the
town, but less general than those of the State. In the great
central and Northwestern States the same system obtains, though
less completely carried out. In the Southern and Southwestern
States, the town corporations hardly exist, and the rights and
interests of the poorer classes of persons have been less well
protected in them than in the Northern and Eastern States. But
with the abolition of slavery, and the lessening of the
influence of the wealthy slaveholding class, with the return of
peace and the revival of agricultural, industrial, and
commercial prosperity, the New England system, in its main
features, is pretty sure to be gradually introduced, or
developed, and the division of powers in the State to be as
effectively and as systematically carried out as it is between
the General government and the particular or State governments.
So, though universal suffrage, good as far as it goes, is not
alone sufficient, the division of powers affords with it a not
inadequate protection.

No government, whose workings are intrusted to men, ever is or
can be practically perfect--secure all good, and guard against
all evil. In all human governments there will be defects and
abuses, and he is no wise man who expects perfection from
imperfection. But the American constitution, taken as a whole,
and in all its parts, is the least imperfect that has ever
existed, and under it individual rights, personal freedom and
independence, as well as public authority or society, are better
protected than under any other; and as the few barbaric elements
retained from the feudal ages are eliminated, the standard of
education elevated, and the whole population Americanized,
moulded by and to the American system, it will be found to
effect all the good, with as little of the evil, as can be
reasonably expected from any possible civil government or
political constitution of society.




CHAPTER XI.

SECESSION.


The doctrine that a State has a right to secede and carry with it
its population and domain, has been effectually put down, and the
unity and integrity of the United States as a sovereign nation
have been effectively asserted on the battle-field; but the
secessionists, though disposed to submit to superior force, and
demean themselves henceforth as loyal citizens, most likely hold
as firmly to the doctrine as before finding themselves unable to
reduce it to practice, and the Union victory will remain
incomplete till they are convinced in their understandings that
the Union has the better reason as well as the superior military
resources. The nation has conquered their bodies, but it is
hardly less important for our statesmen to conquer their minds
and win their hearts.

The right of secession is not claimed as a revolutionary right,
or even as a conventional right. The secessionists disclaim
revolutionary principles, and hold that the right of secession is
anterior to the convention, a right which the convention could
neither give, nor take away, because inherent in the very
conception of a sovereign State. Secession is simply the repeal
by the State of the act of accession to the Union; and as that
act was a free, voluntary act of the State, she must always be
free to repeal it. The Union is a copartnership; a State in the
Union is simply a member of the firm, and has the right to
withdraw when it judges it for its interest to do so. There is
no power in a firm to compel a copartner to remain a member any
longer than be pleases. He is undoubtedly holden for the
obligations contracted by the firm while he remains a member; but
for none contracted after he has withdrawn and given due notice
thereof.

So of a sovereign State in the Union. The Union itself, apart
from the sovereign States that compose it, is a mere abstraction,
a nullity, and binds nobody. All its substance and vitality are
in the agreement by which the States constitute themselves a firm
or copartnership, for certain specific purposes, and for which
they open an office and establish an agency under express
instructions for the management of the general affairs of the
firm. The State is held jointly and severally for all the legal
obligations of the Union, contracted while she is in it but no
further; and is free to withdraw when she pleases, precisely as
an individual may withdraw from an ordinary business firm. The
remaining copartners have no right of compulsion or coercion
against the seceding member, for he, saving the obligations
already contracted, is as free to withdraw as they are to remain.

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